SARDAR MUHAMMAD IQBAL, J.--The territories of (i) the Governors' Provinces of the Punjab, the North-West Frontier and Sind, (ii) tile Chief Commissioner's Province of Baluchistan and the Capital of the Federation, (iii) the States of Bahawalpur and Khairpur, and the Baluchistan States Union, (iv) the Tribal Areas of Baluchistan, the Punjab and the North-West Frontier, and the States of Amb, Chitral, Dir and Swat, were, by the Establishment of West Pakistan Act, 1955, incorporated into the Province of West Pakistan. The Act was passed by the Constituent Assembly of Pakistan on the 30th of September 1955 and having received the assent of the Governor-General on the 3rd of October 1955 it was published for general information in the Extraordinary Issue of Gazette on the same day: The Government of India Act, 1935, was amended accordingly. Under the Constitution of the Islamic Republic of Pakistan, 1956, the territories of Pakistan were to comprise of the Province of East Pakistan, the Province of West Pakistan and such other States and territories as were or might become included in Pakistan, whether by accession or otherwise. It was, however, a short-lived Constitution and was brought to an end on the 7th of October 1958 when the Martial Law was imposed in the country. The composition of the Islamic Republic remained unchanged till the 8th of June 1962 when the Martial Law was lifted and Field Marshal Muhammad Ayub Khan, the then President of the country enacted the Constitution of the Islamic Republic of Pakistan, 1962. It was provided in clause (2) of Article 1 that the "Republic shall consist of (a) the Province of East Pakistan and the Province of West Pakistan; and (b) such other States and territories as are or may become included in Pakistan, whether by accession or otherwise. Having come to the conclusion that all civil administration and Constitutional authority in Pakistan had become ineffective, the Field Marshal on the evening of the 25th of March 1969 stepped aside and handed over control of the affairs of the country to the Defence Forces of Pakistan whereupon General Agha Muhammad Yahya Khan issued on the same day the Proclamation of Martial Law declaring "that the whole of Pakistan shall be under Martial Law with immediate effect" and assumed "the powers of the Chief Martial Law Administrator and the command of all the Armed Forces of Pakistan." The Constitution of 1962, was, by virtue of clause (1) of Article 4 of the Proclamation of Martial Law, abrogated. On the 4th of April 1969, the Chief Martial Law Administrator in pursuance of the Proclamation of the 25th March 1969, and of all powers enabling him in that behalf, made and promulgated the Provisional Constitution Order and it was directed that it shall "be deemed to have taken effect immediately upon the making of the Proclamation on the 25th day of March 1969". Clauses (1) and (2) of Article 3 of the Provisional Constitution Order are in the following terms:-- "3. (1) Notwithstanding the abrogation of the Constitution of the Islamic Republic of Pakistan brought into force on the 8th day of June 1962, hereinafter referred to as the said Constitution, by the proclamation and subject to any Regulation or Order made, from time to time, by the Chief Martial Law Administrator, the State of Pakistan shall, except as otherwise provided in this order, be governed as nearly as may be in accordance with the said Constitution.
(2) The Chief Martial Law Administrator shall be the President of Pakistan, hereinafter referred to as the President, and shall perform all functions assigned to the President of Pakistan by or under the said Constitution or by or under any law."
The order again made no change as to the composition of the territories of the country. The President could, under Article 8, "by order, make such provisions, including constitutional provisions, as he may deem fit for the administration of the affairs of the State".
2. On the 30th of March 1970, the President and Chief Martial Law Administrator in pursuance of the proclamation of the 25th day of March 1969, and in exercise of all powers enabling him in that behalf, promulgated the Province of West Pakistan (Dissolution) Order, 1970, Article 4 whereof provided as follows:-- "4. Constitution of new Provinces, etc.--(1) As from the appointed day, the Province of West Pakistan, as it existed immediately before that day, shall cease to exist and there shall be constituted in its place four Provinces to be known respectively as (a) Baluchistan, (b) the North-West Frontier Province, (c) the Punjab and (a) Sind, and the following Centrally Administered Areas, namely:-- (a)the Islamabad Capital Territory; and (b)the Centrally Administered Tribal Areas.
(2) The territories of the new Provinces and the Centrally Administered Areas shall be as set out in the Schedule."
This is a petition under Article 98 of the abrogated Constitution of 1962.
3. Ch. Rafiq Ahmad Bajwa, learned counsel appearing in support of the petition, challenged the constitutionality of the Province of West Pakistan (Dissolution) Order, 1970, on two grounds,. viz. (i) that it is violative of Article 210 of the Constitution of the Islamic Republic of Pakistan, 1462, and (ii) that it offends the provisions of the Provisional Constitution Order, 1969 itself.
4. By relying on the last part of clause (1) of Article 3 of the Provisional Constitution Order, namely, "the State of Pakistan shall, except as otherwise provided in this order, be governed as nearly as may be in accordance with the" Constitution of the Islamic Republic of Pakistan, it was contended that the Chief Martial Law Administrator having assumed by the proclamation dated the 31st of March .1969 the Office of the President of the Islamic Republic of Pakistan, subjected himself to the provisions of the Constitution of 1962 and that he could do anything and everything which a President could do under that Constitution, but nothing more than that, or in derogation, or in contravention of the same. He submitted that the limits of the Province of West Pakistan could not be altered nor could the Province be dissolved except in compliance with the provisions of Article 210 of the late Constitution, which provides:-- "A Bill to amend this Constitution which would have the effect of altering the limits of a Province shall not be passed by the National Assembly unless it has been approved by a resolution of the Assembly of the Province passed by the votes of not less than two-thirds of the total number of members of that Assembly. "
He further argued that the impugned order is violative of the Provisional Constitution Order, 1969, inasmuch as the President had himself placed limitation upon him by virtue of that order that he would not make any provision which might be for any other purpose but for the administration of the affairs of the State.
The sum and substance of the two contentions is that notwithstanding the proclamation of Martial Law, the Chief Martial Law Aministrator is subject to the provisions of the Constitution of 1962 itself and cannot do anything as may affect the constitutional provisions except that he may make changes which may be necessary for the administration of the affairs of the State.
5. We feel no hesitation in saying that the petition is misconceived.
The order was issued in pursuance of the proclamation of the 25th March 1969 which declared that the "Constitution of the Islamic Republic of Pakistan" "shall stand abrogated". The National Assembly and the Provincial Assemblies were dissolved. The President, Members of his Council of Ministers, the Governors of the Provinces and the Members of their Councils of Ministers ceased to hold office.
By the abrogation of the Constitution, the entire legal order prevailing in Pakistan came to an end; the very structure of the principal organs of Government and their relationship with each other ceased to exist. But for a further provision in the Proclamation or Orders passed -in pursuance thereof, the Executive and the Judiciary would not have been able to function. The source of all powers of these organs was the Constitution. Since there was no Constitution left after the abrogation, there was no authority left for the exercise of power by them. What was the position of the Executive or Judiciary in such an event? We could conceive of only two situations. They might have refused to recognize the proclamation by which the source of their power, i,e,, the Constitution of 1962, was abrogated. The President, the Governors, the Members of their Councils of Ministers, the Members of the Legislatures and the superior Judiciary, all being under oaths to uphold the Constitution, might have refused to accept the abrogation asserted their authority. Since they did not do it, the only other alternative was to accept the changed order, whatever it was. The new legal order depended on one who had success-fully brought to an end the Constitution. He could have immediately drawn up an instrument providing for the functions of different organs; or he could, for convenience of reference, adopt any other legal order. The President, after the abrogation of the Constitution, could say that the country would be governed as nearly as may be by the Constitution of 1956 or the Government of India Act, 1935. He could thus completely by-pass the abrogated Constitution. The declaration by him that the country would be governed as nearly as may be possible by the Constitution of 1962 did not tantamount to accepting that the legal order to govern the country in future was to be as contained in that Constitution and that it was the supreme law. The provisions contained in clause (1) of Article 3 are only an expression of his declared intention as to the governance of the country. It was provided in Article 5 of the proclamation: "Notwithstanding the abrogation of the Constitution and subject to Regulations or Orders made by the Chief Martial Law Administrator all laws in force immediately before the abrogation of the Constitution shall continue in force"; that "all Courts shall continue and exercise all their powers and jurisdiction which they would have exercised had the Constitution not been abrogated; and that "all persons who immediately before the abrogation of the Constitution, were in office as the Chief Justice or a Judge of the Supreme Court or of a High Court, the Comptroller and Auditor-General, the Attorney-General or Advocate-General or were in service of Pakistan as defined in the Constitution shall, unless the Chief Martial Law Administrator otherwise directs, continue in the said office or in the said service on the terms and conditions as were applicable to them before such abrogation and shall continue to exercise their powers and perform their functions."
6. The source of power of the present legal order is the proclamation of the 25th of March 1969. It has two aspects, one that the Constitution was abrogated and the other that the country was placed under Martial Law. It was not a proclamation simpliciter for imposing Martial Law. We know of Martial Law in Legal Jurisprudence. It is now recognised even in other democratic countries, all over the world, governed by written or unwritten Constitutions to be imposed in a State when the Civil Government fails to control the situation of law and order and calls to its aid the military to restore the country to normalcy. The Martial Law is ordinarily applied to a part of the country, but may in certain cases be applied to the entire country. In its very nature and purpose it is for a short period. We have had such a Martial Law In the country when in 1953 it was imposed within the Municipal limits of the city. of Lahore. In view of the situation of law and order the city was handed over to the Army. The Martial Law Administrator issued his own Regulations to control the situation, and made rules for observance, and provided punishments for their violation. The Martial Law and the Regulations had no source in the then- Constitution of the country, i,e,, Government of India Act, 1935, and, therefore, after the Martial Law was lifted, an Act of Indemnity was passed by the Legislature to validate the acts of Martial Law authorities and to indemnify them against all claims and for all that they had done. The Constitution of the country in such a Martial Law is not affected. It is neither impaired in any manner nor abrogated. In Jurisprudence by Sir John Salmond, Tenth Edition, it is said in respect of a Martial Law: "Martial Law is of three kinds. It is either (1) the law for the discipline and Government of the army itself ; or (2) the law by which the army in time of war governs foreign territory in its military occupation outside the realm ; or (3) the law by which in time of war the army governs the realm itself in derogation of the civil law, so far as required by military necessity and the public safety". In respect of the third category, he remarked : "The third and last kind of Martial Law is that which is established and administered within the realm itself in derogation of the civil law, when a state of war, exists within the realm, whether by way of invasion or by way of rebellion. The legality of such substitution of military for civil justice within the realm itself in time of war has been the subject of much difference of opinion. It is held by some that it is never lawful, unless expressly authorised by Act of Parliament, and that the authority of the civil Courts and the civil law is absolute in time of war no less than in time of peace. According to this view the exercise of military authority within the realm in time of war in derogation of the civil law is always illegal, whatever moral justification for it may exist in considerations of military necessity and the public safety, in the absence of statutory sanction, either precedent, or subsequent by way of Acts of indemnity and ratification. This is not the place in which this question can be adequately discussed. It is sufficient to say that the better opinion would seem to be that even within the realm itself the existence of a state of war and of national danger justifies in law the temporary establishment of a system of military Government and military justice in derogation of the ordinary law of the land, in so far as this is reasonably deemed necessary for the public safety. To this extent and in this sense it is true that inter arena leges silent. The formal establishment of such a system of military Government and justice in time of internal war or rebellion is commonly known as the proclamation of martial law. With the acts of military authorities done in pursuance of such a system the civil Courts of law will not concern themselves in time of war ; and even after peace has come again, the acts so done in time of war may be justified in the civil Courts, so far as done in good faith and with reasonable cause in view of the real or apparent necessity which gave occasion to them. In short, the legal basis of Martial Law in this third sense is simply the common- law doctrine of necessity." "Jurisprudence" thus recognizes and contemplates of Martial Law in the realm in derogation of the civil law, and not by abrogation of the Constitution.
15. The situation of law and order in the country was shown as the cause of the Proclamation. The country could be placed under a Martial Law as is contemplated in Legal Jurisprudence. The basis of Martial Law, its functions, scope and extent in such a case are judged in the context of such a Martial Law. The Constitution remains intact and after the Chief Executive lifts the Martial Law, the acts of the Martial Law authorities, being not under the Constitution or the law made thereunder, are exposed as invalid and to overcome this difficulty an Act of ratification and indemnity becomes a necessity. This has, however, not happened here. The Martial Law, in the sense and known form in Legal Jurisprudence, was not imposed. The Constitution was abrogated, and the Martial Law was imposed. The difference between the two situations is manifest, whereas if only the Martial Law had been imposed in the country, it could be said that "Pakistan under the Constitution of 1962 was placed under Martial Law" ; in the present case the position is that the Constitution of 1962 has by abrogation ceased to exist and the country is under the Martial Law. In the former case the Constitution remains, and after the lifting of the Martial Law, the State has to look to its legislative organ for the ratification of all the acts of Martial Law authorities and indemnity for all that they had done without the authority of the Constitution and law. In the instant case, there is after the abrogation of the Constitution, no Constitution to which the Martial Law authorities have to be accountable. The source of power is the Proclamation and the absolute authority which was assumed. If the Proclamation had not been accepted, and the abrogation of the Constitution had been resisted, there would have been a conflict of authority, and the one having power--legal or otherwise to enforce its decision--would have succeeded. The "essential condition to determine whether a Constitution has been annulled is the efficacy of the change" and to determine whether the "revolution is victorious" the test is whether "the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime."
The conflict did not arise here. No one resisted or opposed the Proclamation and the abrogation of the Constitution. The President had handed over the country to the Commander-in-Chief and left his Office even before the Proclamation, the Ministers relinquished their offices forthwith, the Members of the Legislature did not assert their position. The superior Judiciary continued to work after the Proclamation. The Regulations of the Martial Law authorities curtailing or affecting the jurisdiction of the High Courts and Supreme Court came under examination before the Courts, but in none of the cases the source under which the Regulations were made was held to be invalid. The Proclamation was accepted, and the abrogation of the Constitution not questioned. They have not been questioned or challenged even in these proceedings.
Even in Mir Hassan v. State, upon which the learned counsel for the petitioner placed reliance, their Lordships of the Full Bench have not declared the Proclamation of Martial Law or the Orders made or promulgated in pursuance thereof as invalid.
8. By the issuance of the Proclamation on the 25th of March 1969 and the abrogation of the Constitution a great change has taken place in the constitutional law of Pakistan. It vested the Chief Martial Law Administrator with overriding powers and he could make any Martial Law Order or Regulation contrary to anything appearing in the Constitution of 1962. No doubt it is provided in the latter part of clause (1) of Article 3 of the Provisional Constitution Order that "the State of Pakistan shall, except as otherwise provided in this Order, be governed as nearly as may be in accordance with the said Constitution" but we cannot read this provision detached of the words which D precede it viz., subject to any Regulation or Order made, from time to time, by the Chief Martial Law Administrator". The provisions of the Constitution of 1962 are, therefore, not applicable for the governance of Pakistan in all circumstances and in all situations. They are subject to any Martial Law Regulation or Order made by the Chief Martial Law Administrator who is the only source from1 which all power flows. If any Order is made by him contrary to the Constitution of 1962 it will have an overriding effect and the provision to be applicable would be that Order and not the Constitution of 1962.
9. The Constitution of 1956 had earlier been abrogated by the, Proclamation of Martial Law, dated the 7th of October 1958 and a like provision was made in the Laws (Continuance in Force) Order (Post-Proclamation I of 1958) for the governance of Pakistan. That provision was almost similar to the one contained in the Provisional Constitution Order. Clause (1) of Article 2 of the said Order provided that notwithstanding the abrogation of the late Constitution, but "subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic to be known henceforward as Pakistan shall be governed as nearly as may be in accordance with the late Constitution." Clause (1) of Article 3 of the Provisional Constitution Order, 1969 contains in material terms the same provision. The question as to the constitutional set-up of Pakistan after the abrogation of the 1956-Constitution and as to what was the precise scope of clause (1) of Article 2 of President's Order No, 1 has received authoritative pronouncement from their Lordships of the Supreme Court. Shahabuddin, J., in The State v. Dosso, observed at page 546 of the Report : "According to the Proclamation which is not and cannot be called or permitted to be called in question as well as in effect the late Constitution stands abrogated, and the new order under which the Courts are exercising their respective jurisdiction at present takes its place with regard to the matters to which it relates. The adoption in the new order of any of the provisions of the late Constitution does not affect the abrogation as those provisions, as pointed out by Hans Kelsen in his General Theory of Law and State (translated by Anders 20th Century Legal Philosophy Series) relied on by the learned Attorney-General, receive validity only from the new Order." In the same case, Muhammad Munir, C. J., observed : "But if the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law-creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution the national legal order must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new constitution." In Tanbir Ahmed Siddiky v. Province of East Pakistan. Cornelius, C. J., observed : "The period of Martial Law was governed by its own source of law, namely, the Revolution of the 7th October 1958, and the actions that were done and brought to completion in that period, in compliance with laws derived from the said source are all covered by the Martial Law of which the decision in the case of Dosso, as confirmed in the case of Mehdi Ali Khan, was an essential part". His Lordship had earlier in The State v. Dosso, observed at page 552 : "For, as from the 7th October 1958, a great change has come about in respect of the fundamental law of Pakistan. On that date, the President of Pakistan made a Proclamation whereby he abrogated the Constitution, and declared Martial Law in the entire country. On the 10th October 1958, however, the President, acting in the capacity assumed under the Proclamation, made an Order providing for the continuance of laws which is Order (Post- Proclamation) No, 1 of 1958 and is described as the Laws (Continuance in Force) Order, 1958. This Order is deemed to have taken effect upon the making of the aforesaid Proclamation and proceeds to declare in section 2 that 'the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution', this however being expressly made 'subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law'." It was further observed that the Laws (Continuance in Force) Order "does not furnish any indication which might tend to weaken the primary and basic proposition upon which the Order itself is based, namely that the Constitution of 1956 is abrogated. To say that2 3 the Government of the country shall be carried on 'in accordance with the late Constitution' is not equivalent to giving new life to that Constitution, or accepting that any of its provisions retained the slightest validity, of their own force. For that Constitution, as well as for the new dispensation which replaced it, the date 7th October 1958, makes a point of no return. The abrogation of the Constitution of 1956 represents an irrevocable act of the Supreme authority by which it was performed." Further, the words in section 2 of that Order, viz : "in accordance with the late Constitution" were interpreted to mean "that in matters affecting the Government of the country, for which no provision is made in any instruments issued under the authority of the new regime, where guidance is needed, it is to be sought by reference to the wording of provisions contained in the Constitution of 1956 applicable in the like case. The direction is one which operates by reference- to a previous instrument, without giving validity to that instrument. Equally, the supreme authority may have declared that in some particular respect the action of the Government would be in accordance with some provision contained in the Government of India Act, 1935, or other constitutional instrument, or even in a constitution of some other country." Thus the words in Article 3 of the Provisional Constitution Order do not in any way abridge, curtail or control the power of the President and the Chief Martial Law Administrator. Once he makes an Order or a Regulation contrary to the Constitution of 1962, the law to be observed will be the one contained in that Order or Regulation though it may be repugnant to a provision of the Constitution of 1962.
10.The President and the Chief Martial Law Administrator has, in promulgating the Province of West Pakistan (Dissolution) Order, 1970, acted in pursuance of the Proclamation of the 25th day of March 1969, and in exercise of all powers enabling G him in that behalf, and since the Constitution of 1962 stands abrogated and the entire legislative and executive authority vests in the President and the Chief Martial Law Administrator, the argument that he was controlled by the Constitution of 1962 with regard to his legislative powers, is fallacious.
11. We find no merit in this petition which must fail and is hereby dismissed in limine. PLD 1969 Lah. 786 PLD 1958 S G (Pak.) 533 PLD 1968 SC 185