K. E. CHAUHAN, J.-This judgment disposes of a preliminary objection to the jurisdiction of this Court to entertain and deal with Constitution Petitions numbering 269, challenging orders passed under various Martial Law Regulations concerning employment of the petitioners in service, most of these petitions being directed against orders passed under Removal from Service (Special Provisions)
Regulations (M. L. Rs. 58 and 114).
2. On the 10th of March 1972, was promulgated Martial Law Regula--petition No. 114 of 1972 (known as Removal from Service (Special Provisions) Regulation, 1972), whereunder the "competent authority" could dismiss, remove from service, reduce in rank or direct compulsory retirement of a person in Government service or a person in Corporation service, if in the opinion of the said Authority the employee concerned is (a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income, or (b) guilty of misconduct, or (c) inefficient or has for any reason ceased to be efficient, or (d) engaged or reasonably suspected of being engaged in subversive activities. Para. 2(a) stated that the "competent authority" means the President and where, in relation to any person or class of persons the President authorises the Governor of a Province or any officer or authority not being inferior in rank to the person against whom action is proposed to be taken, to exercise the powers of competent authority under this Regulation, includes such Governor or officer or authority." In Para. 3(3) of the Regulation, it is stated that notwithstanding anything contained in any law or in any decision of a Court, nothing in Sub- para. (1) of Para. 3 which authorised the dismissal etc., shall be construed as requiring the competent authority before making an order under that clause in respect of any person to give such person an opportunity of showing cause against such order. Para. 4 provided that no action taken, order passed, thing done or power exercised under this Regulation, shall be called in question by or before any Court including the Supreme Court and a High Court or a Tribunal or any other Authority.
3. On the 13th of March 1972, there was issued a notification by the Government of Pakistan, Cabinet Secretariat, Establishment Division, Rawalpindi, bearing No. 2/2/72-DA, which was published in the Extra--ordinary Gazette of Pakistan of the same date, containing a list of a large number of Government and Corporation employees who were compulsorily retired by the concerned competent Authority under the aforesaid Regulation. Similar notification was issued by the Provincial Government as well regarding certain other employees. Some of these employees and certain other employees, who were removed from service under Martial Law Regulation No. 58, have filed writ petitions in this Court which are at present 269 in number and which have been put up before us for hearing. The details of these writ petitions are given in the daily list of the Bench dated 31-7-73 (Copy attached). Case from the side of the respondents was argued by Mr. M. B.
Zaman, Advocate-General (Punjab), Mr. Ehsanul Haq, Standing Counsel for the Central Government and Mr. Irshad Hassan Khan, Advocate for WAPDA. From the side of the petitioners, arguments were addressed by Ch. Muhammad Siddiq; Haji Sh. Ghias Muhammad, Mr. M. Anwar, Mr. S. M. Zafar, Mr. M. S. Baqir, Mr. Saeed Akhtar, Mr. Khalil-ur-Rehman Khan, Mr. Khalid Ranjha, Mr. I. U.
Haq, Mr. Javed Hashrni, Mr. Ziaullah, Sh. Almas A.I, Ch. Khurshid Ahmad, Major Ishaq Muhammad Khan and Mr. Rafiq Ahmad Khan Bangash.
4. Learned counsel for the Central Government, Provincial Govern--ment and Corporation(s) have raised a preliminary objection to the competency and jurisdiction of this Court to enterain and hear these writ petitions. Their contention is based on Article 281 of the Interim Constitu--petition of the Islamic Republic of Pakistan which in its original form read as follows:- "28 1-(1) All Proclamations, President's Orders, Martial Law Regula--tions, Martial Law Orders, and all other laws made as from the twenty-fifth day of March 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court.
(2) All orders made, proceedings taken 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, on or after the twenty- fifth day of March 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done.
(3) No suit or other legal proceedings shall lie in any Court 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 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. On 3-4-1973, sub-clause (2) of Article 281 was amended, and in its amended form it reads as follows. (The portions added are underlined):----- "(2) All orders made, proceedings taken 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, on or after the twenty- fifth day of March 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed notwithstanding any judgment of and Court to be and always to have been validly made, taken or done, and shall not be called in question in any Court."
This amendment was brought about by the Constitution Sixth Amendment Order 1973 (President's Order No. 3 of 1973 i, issued under Article 279(1) of the Interim Constitution which directed that the words which have been underlined by us above shall be deemed always to have been so inserted with effect from 21-4-1972, i.e., the date on which the Interim Constitution came into force.
6. Learned counsel for the respondents in support of their preliminary objection referred to three recent judgments which were rendered by the superior Courts. The first was the decision of the Supreme Court, dated 20-4-1972, in Miss Asma Jilani v. The Government of Punjab (PLD 1972 SC 139in which the Supreme Court held that usurpation of power by Agha Muhammad Yahya Khan on 25-3-1969, was without lawful authority and con--sequently all laws made or actions taken thereunder, during the period of Martial Law, would be illegal. However, the Court retained the power to condone four types of laws and actions, namely (i) all transactions which were past and closed, for, no useful purpose could be served by reopening them, (ii) all acts and legislative measures which were in accordance with or could have been made under the abrogated Constitution of 1962 or the previous Legal Order; (iii) all acts which tend to advance or promote the good of the people and (iv) 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 the Objectives mentioned in the Objectives Resolution. The Court, would not condone any act which intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. The Court would not also condone anything which seriously impaired the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity (see page 207 as per judgment of Hamoodur Rahman, C. J.).
7. The next judgment in order of time is a decision of five Judges of this Court, dated 6-7-1972, which was rendered in W. P. No. 403/1972 entitled Zia-ur-Rehman v. The State (PLD 1974 Note 3) in which the judgment of the Supreme Court in Miss Asma Jilani's case was copiously quoted and followed. While holding that clause (i) of Article 281 of the Interim Constitution, gave a complete blanket cover to all laws made during Martial Law Period, the majority view was that clause (2) of the said Article, however, was not so sweeping and all embracing as clause (1) was. Clause (1) dealt with laws, while clause (2) dealt with orders made, proceedings taken and acts done or purported to have been made taken, or done on or after 25-3-1969, by any authority or by any person in exercise or purported exercise of the powers, derived (to be brief) from any Martial Law Regulation or other enactment or rule etc. And validated them. The majority view was (i) that this provision did not cover acts, orders or proceedings which were corum non judice or mala fide; (ii) that so far as acts, orders or proceedings which concluded under the repealed laws were concerned, they according to the language of Article 295 of the Interim Constitution were saved only to the extent they were "duly done or suffered under the law." The word "duly" also showed that intention was not to validate corum non judice and mala fide acts. To remain consistent, therefore, it was held that in clause (2) also, validity conferred; did not extend to corum non judice and mala fide acts etc. (iii) that the language used in clause (2) was different from the one used in clause (1) inasmuch as there was no jurisdiction-ouster clause which existed in clause (1) and that (iv) it will not be fair to attribute a motive to the Constitution-makers that they intended to cover and protect acts wholly without jurisdiction or mala fide. M. A. Cheema, J., went a step further and held at pages 115-116 that the (aforesaid limited) validation also covered further continuation of orders made, proceedings taken and sentences passed etc. An argument was raised in that case by the petitioner's counsel therein that the terminology used in clause (2) was confined to past and did not relate to futurity. This argument was repelled by M. A. Cheema, J., and he held as has been mentioned earlier. A. R. Sheikh, J., on page 66 of his judgment held that, "the phrase, `to be' appearing in sub-Article (2) of Article 281 has been rightly interpreted by the learned Attorney- General as one of futurity on the basis of the definition given in Stroud's Judicial Dictionary, Volume IV, page 3038 (Third Edition). No authority to the contrary has been cited by learned counsel for the petitioners. Again, the phrase, `always to have been', has been construed, and rightly so, for the past. The result is that the legal fiction created by the word `deemed' will be available both for the past and in future." The judgment of this Court, even though important it was, unfortunately, has not been published in any law report so far and the pages which we have quoted are from a book which was got printed by the Advocate-General for reference in the Supreme Court in appeal.
8. The third judgment is again of the Supreme Court rendered on the 8th of January 1973, in appeal from the judgment of the five Judges hereinbefore mentioned and is reported inThe State v. Zia- ur-Rehman and others (PLD1973SC49The Supreme Court maintained the majority view of this Court and held that it was open to the Constitution-makers to oust jurisdiction of Courts and if in any case the jurisdiction was successfully ousted the Courts could not assume the same. It further held as a proposition of law that jurisdiction of Courts could be ousted even vis-a-vis corum non judice and mala fide acts and that the Constitution-makers possessed full powers in that respect.
However, when any jurisdiction --ouster clause comes up for consideration before a Court (they held), it could always interpret its extent and scope in order to find out as to how far the jurisdiction was outsed. After so holding, their Lordships proceeded to examine clause (2) of Article 281 and held that its language was not comprehensive enough to validate corum non judice or mala fide actions. As regards the ouster of jurisdiction, they further held that clause (2) did not contain any such jurisdiction-ouster words, as were used in clause (1).
9. After referring to these three cases, learned counsel for the respondents argued that it was this state of affairs in which the State found itself vis-a-vis the scope and interpretation of clause (2) of Article 281. These interpretations had created a serious difficulty and a threat for the State, which had embarked upon a huge programme of social, economic and legal reforms. One of such programmes was to eradicate the evil of corruption in Government and Corporation employees and a drive in that respect had already been made on 10-3-1972 by promulgation of Martial Law Regulation No. 114 which did away with all the formalities of show --cause notice and hearing and invested a complete power in the "competent authority" to inter alia compulsorily retire any person who in its opinion was suffering from the defects mentioned therein. The fact that there was no provision for hearing, coupled with another fact that it was only the opinion of the "competent authority", which was the sole deciding factor, shows that the aforesaid (reformatory) Regulation was of a very drastic nature and character and was intended to bring immediate results. It was in keeping with the aim, object and scheme of the Regulation, it was contended, that no inroads into it, should be allowed through Courts and it was for this purpose, that even though in the main Regulation itself, the jurisdiction-ouster provision (namely paragraph No. 4), was not so wide, the Constitution-makers rose to the occasion and made it very wide and comprehensive by using various types of words and phrases in clause (2) of Article 281. However, since according to the three judgments, herein--before quoted, the desired results had not been achieved, and doubt and scope was left out, for putting certain rigid construction on clause (2), therefore, the President resolved that doubt and removed that difficulty by enacting P. O. No. 3 of 1973 and gave it a retrospective effect and also added a caution that validity mentioned in clause (2) was to be conferred on various acts etc., "notwithstanding any judgment of any Court" and gave a further indication of his mind by adding a jurisdiction-ouster clause, just in the same fashion as it was contained in clause (1).
The amended clause (2), according to the respondents was now all sweeping and admitted of no implications and exceptions. It not only validates all acts etc , but at the same time ousted the jurisdiction of superior Courts, and for this reason, this Court, it was contended, had no jurisdiction to entertain or hear these petitions on any ground whatsoever.
10. We have given our serious consideration to the plea of the respondents that clause (2) of Article 281 (as amended) is now all, embracing A and admits of no implications and exceptions. However, we have not been able to agree with this contention and our reasons in this respect are a follows:
(a) the language of clause (2) of Article 281 talks not merely of laws promulgated only during the Martial Law period but has reference to all types of laws which were in vogue for instance even from any prior period. The date onward from which validity to acts, proceedings and orders is conferred is 25-3-1969, but the laws under which orders may have been made, proceedings may have been taken or acts may have been done, may be of prior or subsequent dates. To raise an argument therefore, that the aim of this Clause was to preserve actions taken in connection with certain social, economic or legal reforms introduced in the country is not correct and this plea in our opinion cannot be allowed to overshadow the true import of clause (2) of Article 281.
(b) In a previous judgment in the case of Zia-ur-Rehrnan v. State PLD 1974 Note 3 one of us (K. E.
Chauhan, J.) had the occasion to analyse certain provisions of Article 280 for the purpose of showing as to which of the laws after 21-4-1972 were repealed and which were to continue and in what form and to what extent. He actually made a table in that respect which may be referred to. It is not necessary to repeat the said table here, and it will be sufficient to say subject to reason (a) above, that laws mentioned in clause (2) of Article 281 may be of two types, namely, (i) those which are repealed or (ii) those which are continuing. Regarding those which are repealed, Article 295 preserved their effect only to the extent, "anything was duly done or suffered thereunder." In other words, corum non judice and mala fide acts were not protected. The language of clause (2) of Article 281 (as amended) has not brought about any change in that respect, inasmuch as, it has not amended Article 295 and, therefore, to hold that validity conferred under clause (2) of Article 281 is all sweeping, would still be not correct. In this respect, it may be pointed out that it is not the judgment of any Court which so states, but it is Article 295 9f the Constitution itself which so indicates.
(c) Regarding laws which were allowed to continue by the Interim Constitution, they all became Acts of the appropriate Legislature and again were of two types, namely, (a) those which were placed in Schedule 1 and were immune from challenge on the plea of Funda--mental Rights and
(b) those which were not so immune. Regarding the latter category if any act was done thereunder, the same could be scrutinised by superior Courts on all grounds including the Fundamental rights, while regarding the immuned laws, proceedings thereunder could be challenged on grounds other than Fundamental Rights. This is the effect of cumulative reading of the various relevant Articles on the subject. If the contention of the learned counsel for the respondents was to be accepted, then it would mean that whereas Article 201 preserved the right to challenge aforesaid actions, clause (2) of Article 281, if it is all embracing, would validate them by destroying the cause of action and ousting jurisdiction of Courts. This would create a formidable hurdle and an inherent inconsistency in the working of the Constitution and we cannot impute an intention to the Constitution-makers that they were taking away with] the other hand which they had given by the one. The contention, B therefore, that clause (2) of Article 281 (as amended) was now all sweeping, admitting of no exceptions or implications, is not correct.
(d) Stage is now ripe to attend to the amendments which have been introduced by Presidential Order No. 3 of 1973. By this Order after the words "shall be deemed", the words, "notwithstanding any judgment of any Court," have been inserted in clause (2) of Article 281. This shows that the fictional validity conferred on various acts etc., has to be given effect to, "notwithstanding any judgment of any Court". The question is as to what is the validity which has been conferred by the aforesaid deeming fiction. The validity has been conferred on-
(i) all orders made, proceedings taken and acts done;
(ii) by any authority or person;
(iii) which were made, taken or done; or
(iv) which were purported to have been made, taken or done;
(v) on or after the 25th of March 1969;
(vi) in exercise of the powers derived from any Presidential Order, Martial Law Regulations, Martial Law Orders, Enactments, Notifications, Rules, Orders or Bye-Laws, OR This indicates that the validity is conferred on the orders, proceedings or acts mentioned in clause
(2) of Article 281 and on no others. This validity has to be given effect to "notwithstanding any judgment of any Court", if any judgment of any Court indicated that no such validity could be extended to the - aforementioned orders, proceedings or acts, etc., then that judgment is to be ignored. The words, "notwithstanding any judgment of any Court," in no way, extended the scope of the validity itself, which is to be gathered from the words preceding the words, "shall be deemed". In other words, the words, "notwithstanding any judgment of any Court," have reference to the fortification of the deeming fiction and not to the scope, connotation or limitation of the fictional validity itself. What that fictional validity is, has to be gathered from the validity con--ferring words and after it is so determined, then it should be given effect to notwithstanding any judgment of any Court. It is pertinent to mention that P. O. No. 3 of 1973 has not brought about any change in the matters in and the extent up to which the validity is conferred. That phraseology even uptill now remains the same. The words, "notwithstanding any judgment of any Court," therefore, have not brought about any variation in this respect, though from another point of view, they have tended to fortify the deeming fiction. It will be noticed that in the case of Miss Asma Jilani, it had been held that validity to various actions, legal or otherwise, taken during Martial Law period, could be conferred only by Courts on the ground of necessity and to the extent that such a condonation was permissible within the four principles highlighted by Hamoodur Rahman, C. J., as reproduced in Para. 6 of this judgment. It was to do away with this theory that by adding the words, "notwith-- standing any judgment of any Court", the draftsman wanted to show that the validity could be conferred not only by the Courts but by the Constitution-makers also Whose scope of authority in various respects and field had hitherto been thrown a serious challenge in the aforesaid three reported cases. It further shows that the draftsman wanted to indicate that while granting the fictional validity, he was not bound to confine himself within the so-called "principles of condonation" pointed out in Miss Asma Jeelani's case and could rather confer validity in the manner and to the extent in which it had been conferred in clause (2) of Article 281. That extent and that manner itself, it is to be pointed out, has, however, not been changed in any form by P. O. No. 3 of 19 73. Learned counsel for the respondents contended that the words, "notwith--standing any judgment of any Court", exist in clause (1) of Article 281 as well, and if due to those words, the validity conferred on various laws mentioned therein was all embracing and complete, why the validity conferred in clause (2) should not be similarly complete and all embracing? The plea raised is not sound because there is a vast difference in the text and the terminology of both these clauses and to give a short answer, in clause (1), competency of the authority who may have made various laws is validated, while in clause (2) validation is to be conferred only if the orders made, proceedings taken and acts done are in exercise or purported exercise of powers derived from any relevant law. In other words in clause (1), the source of the competency of the law-maker is not to be gone into or traced, while in clause (2) that exercise has to be done and the fictional validity cannot come into existence unless the orders made, proceedings taken and acts done are traced to the exercise or purported exercise of a power derived from the relevant law. In clause (1) it is not written that all Proclamations, Presidential Orders, Martial Law Orders and all other laws made as from the 25th day of March 1969, made in exercise or purported exercise of powers derived from such and such source are validated.. The validity is not axed with the aforesaid rider (which has been underlined") while this rider does exist in clause (2). If in any given cause, therefore, the proceedings are totally corum non judice or mala fide, then the source for so acting being absent,, the question of their falling under clause (2), does not arise and even the words, "notwithstanding any judgment of any Court", cannot come to their rescue so as to make them valid. It is to be pointed out that it is not a judgment of any Court which has made corum non judice and mala fide acts as invalid because invalid they always are, and the sole question to be seen is as to whether the new language of clause (2) of Article 281 validates them. If the language of clause (2) itself is incapable of validating corum non judice and mala fide acts, the addition of words, "notwithstanding any judgment of any Court," will not improve the situation in any manner.
(e) A perusal of clause (2) (as amended) of Article 281 shows that it can be divided into two portions. One portion is that which confers fictional validity and the other contains the jurisdiction- ouster clause. Both these portions are connected with the word, "and" and it is stated, firstly, that the various things earlier mentioned therein are validated and, 'secondly, they shall not be called in question in any Court. It was quite reasonable that the matters which had been validated should also have been made immune from Courts' scrutiny. Earlier, this saving, was lacking but by the amendment this vacuum has also been filled up. The addition made in this way, does not extend the scope of validation but simply fortifies the validity already conferred by taking it to its logical end by adding that they will not be called in question in any Court. The amendments go no further than this.
(f) The learned Attorney-General for whom the cases had to be adjourned due to his engagements in International Court of Justice at Hague in connection with the issue of P. O. Ws., addressed arguments before us on 31-7-1973. He frankly and fairly conceded that despite the amendments brought about clause (2) of Article 281 did not cover cases of clear lack of jurisdiction, and for example, he submitted that if there was a case of an order having been passed by an authority which lacked the competency and capacity to pass it or was corum non judice, in the aforesaid limited sense, the provisions of the Constitution hereinbefore referred to will not protect it. He gave an illustration and submitted that if a Major of a Summary Military Court had passed a sentence of death on an accused tried by him, the order being in excess of the capacity and competency of the Summary Military Court was not protected by Article 281(2). Similarly, he submitted, if a civil servant had been compulsorily retired by an authority to whom no proper delegation had been made by the concerned principal then such a case was also not protected.
We endorse this submission of the learned Attorney-General and would add that apart from corum non judice, cases of mzla fide are also not protected, because in this respect. They stand on the same footing, inasmuch as, the Supreme Court in the case of State v. Zia-ur-Rahman, at page 88 of the report has clearly held that:- "It will thus be seen that, so far as this Court is concerned it has con--sistently held the view that a rnala fide act stands in the same position as an act done without jurisdiction, because no Legislature when granting a power to do an act can possibly contemplate the perpetration of injustice by permitting the doing of that act nrala fide.
I am, therefore, of the opinion that the words `purported to be done or done in the purported exercise of powers' cannot cover acts which were not done by persons empowered under the statute or the legislative measure to so act or were clearly beyond the scope of the powers given by the statute or were done mala fide or by practising a fraud upon the statute for a colourable purpose."
The learned Attorney-General tried to take out the cases of mala fide from the pale of "without jurisdiction" cases, but in view of the above reproduced passage of the judgment of the Supreme Court, it is not possible for us to accept his contention. Learned Attorney-General then submitted that no doubt Constitution-makers could not be. Imputed an intention to ,perpetrate an injustice by validating obviously without jurisdiction acts, but intention could be imputed to them that iii such cases they desired to place the remedy elsewhere and oust the jurisdiction of the Courts. If once it is held that clause (2) of Article 281 is not comprehensive enough to validate corum non judice or mala fide acts, then the plea raised by the learned Attorney-General loses all grounds.
We hold accordingly.
11. Learned counsel for the petitioners referred to Article 279 of the Interim Constitution, which reads as follows:------ "279 Transitional powers of the President.-(1) The President shall, by Order, make such provisions as appear to him to be necessary or expedient;--
(a) for bringing the provisions of this Constitution into effective operation;
(b) for removing difficulties arising in connection with the enforcement of this Constitution;
(c) for making omissions from;" additions to, modifications of and amendments in this Constitution:
(2) The power to make an Order under this Article may be exercised at any time before a Constitution for Pakistan enacted under Chapter 4 of Part III has come into force.
(3) Power to make any Order under this Article includes power to revoke or vary any Order previously made in the exercise of that power.
(4) Any Order made under this Article may, be made so as to be retrospective to any date not earlier than the twentieth day of December 1971.
(5) Any Order made under this Article shall be subject to alteration, modification or repealby the National Assembly in accordance with the provisions of Chapter 4 of Part III."
12. They also quoted in extenso the Sixth Amendment Order, 1973 (President's Order No. 3 of 1973) which is reproduced below:- "No. F-24(1)/73 Pub.-The following Order made by the President on the 3rd April 1973, is hereby published for general information:- THE CONSTITUTION SIXTH AMENDMENT ORDER, 1973 PRESIDENT'S ORDER NO. 3 OF 1973 Whereas clause (1) of Article 279 of the Interim Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, provides that for making amendments in the Constitution, the President shall make such provisions as appear to him to be necessary or expedient; Now, therefore, in pursuance of the said clause (1) of Article 279 of the Constitution, the President is pleased to make the following order:-
1. Short title and commencement.-(1) This Order may be called the Constitution Sixth Amendment Order, 1973.
(2) It shall come into force at once and shall be deemed to have taken effect on the twenty-first day of April 1972.
2. Amendment of Article 281 of the Constitution, in Article 281, in clause;
(a) after the words, `be deemed', the commas and words, `notwith--standing any judgment of any Court,' shall be inserted arid shall be deemed always to have been so inserted; and
(b) after the word `done' at the end, the words `and shall not be called in question in any Court', shall be inserted and shall be deemed always to have been so inserted."
13. Some arguments were addressed before us on the scope of the powers vested in the President to issue Orders under the aforesaid Article. It was submitted by the learned counsel for the petitioners that-
(a) Article 279 is a delegated legislation and if the delegate exceeded the charter of his delegation by promulgating Orders which were beyond the scope of the said Article, the same could be struck down by this Court.
(b) Proceeding in this way, it was contended that sub-clause (c) of clause (1) of Article 279 should be read ejusdum generis with the preceding clauses (a) and (b) and it should be held that the power conferred in sub-clause (c) for making omissions from, additions to, modifications of and amendments in the Constitution; can be exercised for the purpose of bringing the provisions of this Constitu--petition into effective operation of for removing difficulties arising in connection with the enforcement of this Constitution, or for causes ejusdum generis thereto. The Sixth Amendment Order, it was submitted, went beyond these objectives and was, therefore, ultra wires of the powers of the President. Article 279 authorises the making of `machinery provisions' and is no licence for making drastic changes like ouster of jurisdiction of superior Courts.
(c) That the Sixth Amendment Order was afraud on the Constitution, because under cloak of Article 279 a power is being used or claimed which if conceded to vest in the 'President, may lead to vest in him even the power for fee subversion of the Interim Constitution itself. Article 279 does not confer such a vast power in him and it should be held that its scope, is limited and not unlimited. If its scope is limited, theca it is for limited Court to lay done as to what those limits are, and whether the Sixth Amendment, Order exceeds those limits or not.
(d) That the Sixth Amendment Order is a substantive legislative measure and cannot take away such jurisdiction of superior Courts which the Constitution-makers themselves conferred through Article 201.
(e) That the words used in Article 279 are that, "the President shall, by Order, make such provisions as appear to him to be necessary or expedient . . . . ." The word `shall' connotes that it is his duty rather than conferment of power on him and that duty is to preserve the Constitution and not to introduce drastic changes therein so as to curtail jurisdiction of superior Courts bestowed by the Constituent Assembly itself. Learned counsel referred copiously to various passages in Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486 and Muhammad Abdul Haque v. Fazlul Quader Chowdhry and 2 others PLD 1963 Dacca 669 and submitted that on the same reasonings, which prevailed in those cases, the Sixth Amendment Order should be held to be in excess of the authority of the President as contained in Article 279.
(f) That the Interim Constitution in its nature was a temporary document inasmuch as .Permanent Constitution was yet to be framed. The scope of Article 279 was not to authorise the President to introduce substantive changes during the interim period different from the Policy and Scheme of the Interim Constitution itself. It was submitted that the Sixth Amendment Order introduced changes of a substantive nature and was, therefore, ultra vires of the powers of the President.
(g) That in clause (4) of Article 279 it was clearly laid down that any Order made under this Article may be made so as to be retrospective to any date not earlier than the twentieth day of December 1971. A question was posed that suppose the President was to enact an Order on the lines of clause
(2) of Article 281, which was to cover past acts and transactions with effect from 23-3-1969 could he do it. Learned counsel for the petitioners submitted that since such a retrospective Order could not have been made, as the retrospective power of the President in Article 279(4), extended only up to 20-12-1971 and not up to 25-3-1969, therefore, on the same reasoning he could not do indirectly which he was incompetent to do directly. Elaborating the point, it was argued that Article 281(2) was retrospective with effect from 25-3-1969 and the insertions made therein by the President, by the Sixth Amendment Order were also to cover various transactions mentioned in Article 281(2) with effect from 25-3-1969. By this indirect method of making additions in Article 281(2), the President was covering and dealing with certain past acts with effect from 25-3-1969. It was contended that from this point of view, the additions made in Article 281(2) (which otherwise was retrospective from 25-3-1969), would in the very nature and fitness of things also have the same retrospective impact and would be a clear violation of the prohibition contained in clause (4) of Article 279.
14. From the side of the respondents, the following reply was given to arguments of the petitioners;
(i) That no doubt Article 279 was in the nature of a delegated legislation and in its very concept, power given therein could not be said to be unlimited and it could be conceded in a general form purely on a political plane that under the said Article the President should not make such fundamental changes, which may alter the very substratum, policy, scheme and pattern of the Constitution itself. However, it was argued that in the instant cask. It was not necessary to find out or lay down in any theoretical form, the limits beyond which an Order made by the President could not go, and that the question should be left open to be decided in such individual case ris-a-vis any particular Order involved therein to find out as to whether it fell within or went outside the scope of Article 279. It was further submitted that speaking again on a general plane, apparently, the power given in Article 279 was very wide, which may contain political limitations but it contained no legal limitations. From purely legal point of view, the powers of the President in Article 279 were limitless. If in any given situation, he made such orders or changes, in the Interim Constitution, which were not liked by the body politic of the country, the remedy would be political but not a legal remedy through Law Courts.
(ii) That sub-clauses (a), (b) and (e) of clause (1) of Article 279 were independent sub-clauses by themselves. Sub-clause (c) in this way was an independent charter for the President to make omissions from, additions to, modifications of, and amendments in the Interim Constitution. In its very nature, it could not be read ejusdum generis with sub-clauses (a) and (b) and at least no purpose akin to sub---clauses (a) and (b) was suggested by the petitioners in their arguments which could be considered to be ejusdum generis in that sense. Interim Constitution was prepared in a very short time, in great haste, the sole purpose of which was to put the country on rails, after taking back the power from a usurper (Agha Muhammad Yahya Khan). The Constituent Assembly promised that it will be framing the permanent Constitution shortly and for the interregnum they gave the interim Constitution to the country and as they had unanimous and full faith in the President, they gave him very wide powers to make omissions from, additions to, modifications of and amendments in the Interim Constitution. They were not certain about the various impacts of the various provisions of the Constitution and in the very; fitness of things, such a power even otherwise was necessary to be given to a person who could rise to tire occasion and make omissions from, additions to, modifications of ad amendments in the Consti--tution at a time of need. The only check which tie Constituent Assembly in this respect placed was by way of clause
(5) of Article 279, where it was written that any Order under this Article shall be subject to alteration, modification or repeal by the National Assembly in accordance with the provisions of Chapter 4 of Part III (Articles 95 to 99) which also showed that if in any case any Order of the President was not liked by the Constituent Assembly, they could alter, modify or repeal the same in accordance with the provisions of Chapter 4 of Part III of the Interim Constitution. Short of this, there was no limitation on the powers of the President under Article 279. Since it was to be a short-lived Constitution, power was given to the President to amend it and lengthy procedure which generally exists in various Constitutions in the matter of its amendment was done away with. In this respect analogy was drawn from section 9 of the Indian Independence Act, 1947 (10 & 11 Geo. 6 Ch. 30), where at the time of the creation of Pakistan, until a Constitution was framed, power was given by clause (c) to the Governor-General for making omissions from, additions to and adaptations and modifications of, the Government of India Act, 1935 and the Order-in-Council, Rules and other Instruments made there. Under, in their application to the separate new Dominion. Just in that context the power was limitless, here too it was argued on the same reasoning, the power of the President legally was unlimited. Reference was also made to the following passage in the judgment of the Supreme Court in the case of State v. Zia-ur-Rahman and others PLD 1973 SC 49, where at pages 76-77, it was written as follows:------ "This does not, however, mean that the body having the power of framing a Constitution is `omnipotent' or that it can disregard the mandate given to it by the people for framing a Constitution or can frame a Constitution which does not fulfil the aspirations of the people or achieve their cherished objectives political, social or economic. These limitations on its power, however, are political limitations and not justiciable by the judiciary. If a Constituent Assembly or National Assembly so acts in disregard of the wishes of the people, it is the people who have the right to correct it. The judiciary cannot declare any provision of the Constitution to be invalid or repugnant on the ground that it goes beyond the mandate given to the Assembly concerned or that it does not fulfil the aspirations or objectives of the people. To endeavour to do so would amount to entering into the political arena which should be scrupulously avoided by the Judiciary.
With political decisions or decisions on questions of policy, the judiciary is not concerned. Its function is to enforce the Constitution and to see that the other organs of the State confine themselves within the limitations prescribed therein, but in doing so it must remember that it even too is subservient to the Constitution and its power to hear and determine is subject to -the limitations contained therein and can be exercised only with regard to the subjects over which it is given jurisdiction and in the manner prescribed. By virtue of the fact that it has been set up as that organ of the State which is to adjudicate upon disputes, it has the right to exercise its `judicial power' to hear and . Determine even in cases where its own jurisdiction is in question. If there is a dispute on the point as to whether it has or has not jurisdiction over a certain subject-matter, it can certainly hear and determine that dispute, even if the result be that it had to hold that it has no jurisdiction."
The power to make amendments, it was argued, was left to the good judgment of the President, inasmuch as, Article 279 stated that "the President shall by Order make such provisions as appear to him to be necessary or expedient . . . . " This also, according to the learned counsel for the respondents, indicated that the necessity or expediency, for example, of any amendment, was to be seen by the President and not the Courts of law. The President in this respect had been made by the Sovereign Constituent Assembly as the sole arbitor for making omissions from, additions to, modifications of and amendments in the Constitution, subject of course to the ultimate control of the Constituent Assembly to alter, modify or repeal his Orders if necessary. Taking the argument to its logical conclusion, it was submitted that even if in any given case, the President exceeded his power under Article 279 (even when he violated clause (4) of Article 279) the remedy was appeal to the body politic or pursuit under clause (5) of the Order and not have a resort to a Court of law.
(iii) That the amendment introduced by the Sixth Amendment Order rather fulfils the Policy laid down by the Constituent Assembly itself in Article 270 of the Permanent Constitution, which is to come into force with effect from 14-8-1973. According to that Constitution, all actions, after 19-12- 1971 (when President Bhutto took over) are perfectly valid. As regards acts, during Yahya's regime, Parliament has been given power to render them invalid within two years and unless so declared, they too shall remain valid. According to the respondents all this showed that the Constituent Assembly did not take exception to the Sixth Amendment Order of 1973 (at any time after the pro-- mulgation of that Order) and from that point of view, this Court too should not tamper with the same. In any case the amendments introduced were not of any substantive character. They were in line with the aim and object of the original Article 28(2) itself.
(iv) That clause (4) of Article 279 is not attracted in the case inasmuch as, it refers 'co such Orders which go beyond 20-12-1971, whereas in the instant case the Sixth Amendment Order does not go beyond that date. Most important thing in this Order, according to the respon--dents is ouster of jurisdiction and the said ouster is with effect from 21-4-1972. Retrospectively, it was contended, was up to the com--mencing day i.e., 21-4-1972 and being within the permissible range no objection could be taken to it. Reference in this respect was made to Master Ladies Tailors Organisation and another v. Minister of Labour and National Service (1950) 2 All E R 525 and the case quoted therein, namely, R. v. St. Mary, Whitechapel (Inhabitants) (1848) 12 Q B 120 which according to the learned Advocate-Genera' was more direct in point).
(v) That reference to the cases reported in PLD 1963 SC 486 and PLD 1963 Dacca (mentioned above) was not apt inasmuch as they were decided with reference to clause (3) of Article 224 of the 1962 Constitution the wording, theme and subject of which was quite different from the present Article 279 in various respects. The said clause reads as follows:
224. Commencement.-(1) (2)
(3) At any time before the commencing day or before the expiration of three months after the commencing day, the President may, for the purpose of removing any difficulties that may arise in bringing this Constitution, or any provision of this Constitution, into operation (whether in respect of the elections referred to in clause (2) of this Article or in any other respect, direct, by Order, that the provisions. Of this Constitution shall, during such period as is specified in the Order, have effect subject to such adaptations, whether by way of modifications, addition or omission, as he may deem to be necessary or expedient."
The language of this clause was contrasted by the learned counsel for the respondents in minute details with Article 279 which has been reproduced in extenso earlier. It was particularly pointed out that in Article 224(3), the word "amendment" existed nowhere, whereas .In the instant case this word has been deliberately used in Article 279(1)(c). Similarly, the power in Article 224(3) was made only for adaptations but in Article ?.79 there is no such circumspection, and sub-clause (c) of clause (1) of Article 279 is quite wide and independent. For amendment in 1962 Constitution, the procedure was altogether different but in the Interim Constitution the power was pointedly given to the President and here the procedure was more summary and speedy as hereinbefore highlighted.
15. The contentions raised in Paras. 13 and 14 of this judgment, by the learned counsel for the parties, are quite interesting, but since we have held that the amendments made in clause (2) of Article 281 by the Sixth Amendment Order have not brought about (or to be more exact have not succeeded in bringing about) any change in the jurisdiction of the Court under Article 201, to examine cases of corum non judice and mala fide,. therefore, it is not necessary to resolve the aforesaid contentions, which, in the context, remain merely .Academic and hypothetical, though it will be worthwhile to mention that prima facie the viewpoint of the respondents appears to have more appeal and force.
16. The upshot of the above discussion is that the preliminary objec--petition raised by the respondents through their learned counsel is not accepted and is hereby overruled and it is held that the cases in hand can proceed in this Court to the limited extent of corum non judice and mala fide. Let each case now come up for hearing in its own order, after obtaining orders from our Lord the Chief Justice as to whether all these cases should be heard by a Division Bench or since the contested point mentioned above has been resolved, should they be heard in Single Benches in accordance with the usual roster.
The judgment in the case has been announced today. Mr. Irshad Hassan Khan, Advocate on behalf of WAPDA and also on behalf of Central and Provincial Governments have made an oral petition that a certificate of fitness for appeal to the Supreme Court may be granted. From our judgment it is obvious that the case does involve substantial questions of law as to the interpretation of the Interim Constitution of Islamic Republic of Pakistan. A certificate consequently in terms of Clause 2(a) of Article 186 of the Interim Constitution is hereby granted.
K. B A.Order accordingly.