This matter was fixed yesterday for consideration of the three miscellaneous applications when Mr. Niamat Ullah Molvi, appearing for the petitioner, made an application for adjournment on the ground that, according to him the Interim Constitution of the Islamic Republic of Pakistan, 1972, was already repealed with effect from the 10th April, 1973 and that, unless the Judges of this Court had taken a fresh oath, they were incompetent to hear any matter. It is interesting t6 observe that in this application it was stated "this is necessary whether or not the Constitution of 1973 has come into force"; it is difficult to see how if the Constitution of 1972 is no longer in force and the Constitution of 1973 not yet brought into force any Judge of this Court could take an oath and what would be the correct form prescribed therefore and indeed how the Court exists at all. On the basis that Mr. Molvi's contention was not well founded. This was obviously not a good enough ground for an adjournment and upon the basis that it was well founded, then obviously I had no power of granting or refusing an adjournment and the only proper course that I could follow was to refrain from exercising any function as a judge of this Court or as the Chief Justice. I therefore, requested Mr. Molvi to argue this matter before I could take any further steps since I was quite prepared, if I agreed with him, not only myself to retire but to request my learned brethren to refrain from doing any judicial work and to close down the Court.
2. I requested the immediate presence of Mr. Abdul Hafeez Memon, the Advocate-General of Sindh, because although I could not expect him to argue the question at such short notice I wanted a clear statement on behalf of the Government whether it was their stand that this Court continues to exist or not. He assured me in categorical terms on behalf of the Government of Sindh, that Government regarded this Court as a continuing body with all the powers and functions that it had so far enjoyed and performed. In this view of the matter Mr. Niamat Ullah Molvi agreed to file another application expressly challenging our jurisdiction and it was agreed that the question would be argued today as it has been done.
3. Today Mr. Molvi has filed an application in which it is expressly stated that this Court has no jurisdiction to take up any matter unless a fresh oath is taken by the Court, by which I suppose he meant the judges of this Court, on the ground that the Constitution of 1972 stood repealed as on 10- 4-1973 the date of its enactment. Without prejudice to this contention, it was also urged in the application that the Constitution of 1973 had already come into force and that we could not function unless we took oath under that Constitution. So far as the last question is concerned it is easily dealt with because, even assuming that the Constitution of 1973 has come into force Article 275 of that Constitution expressly continues in office the Chief Justice and other Judges of the High Courts and sub-Article (4) of that Article does not require that an oath be taken before any functions are performed by such an official but only that he shall take as soon as is practicable after the commencing date, the prescribed oath. It is to be noted that in the Constitution of 1973, as in the Constitution of the 1972, certain functionaries enter upon their office only after taking an oath but that both these Constitutions provided in respect of such persons as were already in office that they would continue to be in office and that they would take oath as soon as was practicable. In point of fact even when the 1972 Constitution came into force, the Judges of this Court including myself, did not take the oath upon the commencing date but a few days later.
4. The insistence of Mr. Molvi is upon the language used in Article 2646 of the 1973 Constitution: "The Interim Constitution of the Islamic Republic of Pakistan, together with the Acts and President's Orders making omissions from, additions to, modifications of, or amendments in, that Constitution, is hereby repealed."
It is argued that the words "is hereby repealed" mean that the 1972 Constitution was repealed as soon as the 1973 Constitution was enacted. Reference was then made to Article 95 of the 1972 Constitution, which is the opening Article of Chapter 4, which relates to the enactment of the Constitution. Sub-Article (1) states that the principal function of the National Assembly shall be to enact a Constitution for Pakistan and sub-Article (2) provides that the National Assembly shall cease to exercise its function at the expiration of one year from the 14th August, 1972 or on such earlier date on which the enhancement of the Constitution is completed it was, therefore, argued that the National Assembly could no longer function as a Constitution making body. Here I think Mr. Molvi is clearly right although I felt a difficulty, which he could not explain by reason of the language of sub-Article (5) of Article 96 which authorised the National Assembly to pass a bill amending the Constitution. Now obviously a bill to amend the Constitution could be passed only after the Constitution itself was passed and inasmuch as Article 95 prohibits the National Assembly from exercising the function of enacting a Constitution after the enactment it was not clear when and how the power of amending could by utilized. Possibly the matter can be re--conciled by reference to the word "principal" in sub-Article (1) of Article 95 and it may be that the framers of the 1972 Constitution did not regard amending of the Constitution as a principal function. Be that as it may, the question before me is not one of the powers of the National Assembly and I, therefore, do not think it necessary to express any final opinion upon this question.
5. Mr. Molvi emphasized that under Article 96 of the 1972 Constitution all that was required is that the Constitution be enacted and that an assent was not necessary. This is correct but if there has been any assent it can only be regarded as a superfluous act at most and in another view of the matter, cannot affect this validity of the Constitution. I do not therefore understand why the requirement or rather the absence of a requirement of the assent is at all relevant to the argument presented before me. Sub-Article (5) of Article 96 of the 1972 Constitution, however, does say that the authentication of the constitution by the President of the National Assembly shall be sufficient for its enforcement and this is also part of the function on the part of the argument of Mr. Molvi that the Constitution of 1973 has, therefore, already come into force.
6. I regret my inability to accept these contentions. It is perfectly true that Article 266 is phrased in the present tense and it is also true that Article 96 of the 1972 Constitution provided that authentication alone was sufficient for its enforcement. The question, however, really is what is the date upon which enforcement can take place, in other words, what is the commencing date. Now Article 265 of the 1973 constitution itself says that the Constitution shall come into force on the 14th August 1973 or on such earlier day as the President may by notification appoint and that day is referred to in the Constitution as the "commencing day"; if, therefore, Article 266 uses the present tense it uses it with reference to the point of time at which Constitution itself came into force and the words "is hereby repealed" mean is hereby repealed when the Article in question, that is to say, 266 itself, has any force and until the commencing day Article 266 as the rest of the Constitution, subject to its own provision, is not in force at all. The use of the present tense, therefore, does not mean in my view the date upon which the authentication or the passage of the Constitution took place but the commencing day which is any day that the President may appoint before the 14th August 1973 and, if he does not appoint any such date then in any case, the 14th August, 1973.
7. Mr. Molvi emphasized that sub-Article (3) of Article 265 of the Constitution provides that the Constitution shall, for certain purposes, come into force upon the enactment of the constitution.
With all respect, I think the argument is against him rather than in his favour; the very fact that some parts of the Constitution are to come into force even before the commencing day, clearly shows that, excepting for this, the Constitution itself, including of course Article 266, come into force only upon the commencing day. That enactments do not necessarily comes into force upon the day upon which they are enacted or, in those cases where assent is necessary, on the date when the assent is given and that an entire Act need not come into force at the same time is, I think, too well established a proposition to need argument or authority. Legislative history is replete with examples of this kind including constitutional enactments. As Craies in his treatise on Statute Laws states on page 383 (6th edition) "but an Act will not have any operation until the day for its commencement even though the sections of the Act may have been framed as if it would come into operation immediately it receives the royal assent because the last thing settled is when the Act shall come into operation; thereafter all the sections are to be considered as speaking from the date so fixed and are governed by the last section that is to say the section which Fixes the date.
Different sections of an act may come into operation at different dates e.g. Where a particular date is specified for the commencement of the one part of the act and another date or no date or the passing of the Act is specified as the commencement of the rest".
8. Mr. Molvi, however, contends that it is inconceivable that a country can have at the same time in force a part of one constitution and a part of another. It is not only not inconceivable, it has actually happened in the history of this sub--continent; parts of the Government of India Act 1935 did not come into force immediately but were to come into force upon the happening of certain events; it is a matter of recorded history that in fact those events never happened but were over-taken by other events.
9. I was, however, somewhat puzzled at first by the fact that although the present tense is used in Article 266 and I think, if I may say so with respect, quite rightly, yet Article 280 which provides for the continuance of the Proclamation of Emergency uses the future tense. The explanation, however, is I think on further consideration quite simple; Article 260 provides for repeal which takes place once and for all: it therefore refers to a point of time whereas the Proclamation of Emergency is to remain in force for a future period of time until it is terminated by the method provided for in the Constitution; it was therefore quite compatible to use the future tense for a future period of time and the present tense for a point of time, which in relation to the commencing day, is in fact the present time.
10. It remains only to deal with the objection of Mr. Molvi that Mr. Hafiz Memon, although Advocate General of Sindh, has no right of audience. It is claimed that under Article 65 of the Interim Constitution, that is the Constitution of 1972, the Attorney General has been given the right of audience in all Courts and tribunals in Pakistan while a similar language has not been used in regard to Advocate General. As a matter of fact the position is the same in the 1973 Constitution also the relevant Articles being 100 and 140. Reference to the 1962 Constitution will show again that the language is the same the relevant Articles being 36 and 85. Now here again it really makes no difference for the present purpose because in any event Mr. Hafeez Memon is a duly enrolled advocate of this Court and has a right of audience, precisely in the same way as Mr. Niamat Ullah Molvi himself has. If it is necessary to go into this question I think it could easily be pointed out that the reason for conferring this right of audience upon the Attorney General is that in his duties, he would have to appear before all Courts in Pakistan and he may not necessarily be an enrolled advocate of more than one High Court and it would therefore be necessary to confer and express right of audience upon him. It is true of course that the Advocate General of Sindh would also have to appear before the Supreme Court but the Supreme Court Rules themselves provide not only for the right of audience but also for the right of priority of audience in regard to the Attorney General, the Advocate General, the Senior Advocates and other Advocates. Of course the question would not matter for the present purpose.
11. I have, therefore, come to the conclusion that the 1972 Constitution is still in force and that 1973 Constitution has not yet come into force except to the extent that Article 265 sub-Article (3) so provides. It follows that the High Court of Sindh and Baluchistan continues to be the High Court and that the judges of this Court continue to exercise their powers as such. I, therefore, over rule Mr. Molvi's objections.
H.B.T./T-71 /KObjection overruled.