THE FEDERATION OF PAKISTAN THROUGH THE SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN RAWALPINDI vs SAEED AHMAD KHAN AND Other M. R. TOOSY, Ex PRINCIPAL, GOVERNMENT COLLEGE, SARGODHA AND Other

1. HAMOODUR RAHMAN, C. J.-These are two appeals which have been filed by the Federation of Pakistan and the Province of Punjab respectively against the judgment and order of a Division Bench of the Lahore High Court in a large number of petitions filed under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan for challenging certain orders passed under Martial Law Regulations Nos. 58 and 114 called the Removal from Service (Special Provisions) Regulations, whereby a preliminary objection taken on behalf of the Governments concerned to the jurisdiction of the High Court to entertain the said applications was rejected. .

2. The High Court took the view that, notwithstanding the amendments made in clause (2) of Article 281 of the Interim Constitution by the Constitu--petition Sixth Amendment Order, 1973 (President's Order No. 3 of 1973), no change had taken place in the jurisdiction of the High Court under Article 201 of the said Constitution to examine cases to the limited extent that the actions purported to be taken were without jurisdiction or coram non judice and/or mala fide actions. After taking this view, the High Court directed that each case should come up for hearing in its own order to consider as to whether the action challenged in that case was bit by the above principle.

3. These appeals have come before us under a certificate granted by the High Court in terms of- clause (2)(a) of Article 186 of the Interim Constitu--petition, as these cases involve "substantial questions of law as to the interpreta--petition of the Interim Constitution".

4. Martial Law Regulation No. 58 was promulgated on the 2nd of December 1969, during the period of the second Martial Law regime by the then Commander-in-Chief Pakistan Army and Chief Martial Law Administrator. Under its provisions, some 303 Government servants were either removed or prematurely retired from service.

5. Martial Law Regulation No. 114 was promulgated on the 10th March 1972, during the period of the third Martial Law regime which remained operative between the 20th of December 1971 and the 21st of April 1972. Under its provisions, a further lot of Government servants were prematurely retired from service by the competent authority.

6. Both these Regulations purported to authorise the competent authori--ties therein mentioned to dismiss or remove from service or prematurely retire a person in the Civil Service of Pakistan or a Province of Pakistan or a person serving in a Corporation if-

(a) he is inefficient or has for any reason ceased to be efficient, or

(b) is guilty of misconduct, or

(c) is corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known source of income, or

(d) is engaged or is reasonably suspected of being engaged in subsversive activities.

7. The competent authority under both these regulations meant the President but under Martial Law Regulation No. 58 included a Governor in the case of a person in the civil service of a Province or holding a post in any Corporation or other institution set up by or under any Provincial law. Under Martial Law Regulation No. 114, the competent authority meant the President; but where the President so authorised, the Governor of a Province or any other officer or authority not being inferior in rank to the person against whom the action was proposed to be taken in relation to any person or class of persons. Clause (4) of Regulation No. 114 also sought to protect action taken under the said regulation from being called in question by or before any Court including the Supreme Court and a High -Court or a tribunal or any other authority.

8. Regulation No. 114 was also promulgated by the then chief Martial ,.Law Administrator, and under its provisions a notification was issued on the 13th of March 1972, prematurely retiring a large number of officials under the .Orders of the President. This was followed by other notifications of a similar .,nature which were issued by the Governors of the Provinces on the 21st of April 1972, in respect of persons with regard to whom authority had been ,given to such Governors. .Or ordered to be prematurely retired from service under Martial Law .Regulation No. 114 to submit a review petition to the Chief Martial Law Administrator. Against such order. This review had to be submitted to the Establishment Division of the Government of Pakistan, but the Chief Martial Law Administrator was not required, before making any order in respect of the said review, to give to the person concerned any opportunity of showing cause against such order or the order in respect of which the petition was submitted.

9. Clause (6) of this Regulation again protected the order of the Martial Law Administrator in such a review petition from being called in question by or before any Court including the Supreme Court and a High Court or a Tribunal or other authority.

10. Almost every person affected by orders under the said Martial Law Regulation No. 114 filed a review petition; but while these review petitions were pending with the Government, the decision of this Court in the case of Miss Asma Jilani v. The Government of Punjab (PLD 1972 SC 139was announced on the 20th of April 1972, declaring the Martial Law regime of General Agha Muhammad Yahya Khan illegal. As a consequence of this declaration, all laws made or actions taken during the period of the said Martial Law also became illegal, but the Court, in order to prevent chaos, expressed the view that it would nevertheless have the power to condone--

(i) all transactions which were past and closed, for, no useful purpose could be served by re- opening them;

(ii) all acts and legislative measures which were in accordance with or could have been made under the provisions of 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 tend to establish or lead to the establishment of the objectives mentioned in the Objectives Resolution of 1954.

11. The Court also declared that it would not 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, and certainly not condone any act which was designed to entrench the usurper more firmly in his power or to directly help him to run the' country contrary to its legitimate objectives.

12. The Court, however, did not express any opinion as to the legality of the third Martial Law regime, as, in this case, the Chief Martial Law Administrator was the leader of the largest elected party in the Legislature and had actually convened a Parliament for the drawing up of an Interim Constitution for the country. This Constitution was adopted on the 21st of April 1972, and under Article 281 of this Constitution, an attempt was made to validate all laws, acts and actions taken during the Martial Law periods. The language employed for- this purpose in Article 281 was as, follows :- "281. (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 purport--ed 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."

13. This Article came up for consideration in this Court in the case of The State v. Zia-ur-Rahman (PLD 1973SC 39). The judgment in this case was announced. On 8th January 1973.

14. This Court, after an exhaustive review of the position of the judiciary under a written Constitution, its powers and functions, came to the conclusion that, although the judiciary set up under the Constitution cannot claim to declare any of its provisions ultra vines or void, it has the right to-- construe the Constitution and to declare what the Constitution means, reading. The Constitution as a whole and giving to every part thereof a meaning consistent with its other provisions. Construing the Interim Constitution, of 1972 in this way, the Court came to the following conclusion :- "In either view of the matter, therefor, the conclusion to which r have arrived is-that the validity given by clause (2) of Article 281' of the Interim Constitution to acts done or purported to be done in, exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating act "one coram non judice or without jurisdiction or mala fide. Such an interpretation, in my view, not only gives full effect to the provisions of the Interim Constitution but also administers the will of the Law-maker as far as it can be gathered from a harmonious reading of the provisions of clause (2) of Article 281 along with some of the --other provisions of the same Constitution without departing from the well- recognized principle that the Legislature should not be imputed the intention of perpetuating or perpeterating an injustice."

15. During the pendency of the appeal in this Court in the above-mentioned case of Zia-ur-Rahman, which was heard between the 16th and the 23rd of October 1972, the first writ petition was filed in the High Court to challenge an order under Martial Law Regulation No. 114 on the 13th of January 1973. Thereafter, came the Sixth Amendment to the Interim Constitution by President's Order No. 3 of 1973 which was promulgated on the 3rd. Of April 1973. This was made by the President in exercise of the powers given to him by Article 279 of the Interim Constitution.

16. As the contentions on behalf of the Government in this appeal are based mainly on the amendments introduced by this Order, it is necessary to-- quote this order in extenso. It is in these terms :- "PRESIDENT'S ORDER 3 OF 1973 CONSTITUTION SIXTH AMENDMENT ORDER, 1973 .~ [Gazette of Pakistan, Extraordinary, Part I, 3rd April 1973] N0. F. 24(1)/73-Pub.-The following Order made by the President on the 3rd April 1973, is hereby published for general information Whereas clause (1) of Article 279 of the Interim Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitu--petition, 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 1973.

2. Amendment of Article 281 of the Constitution.-In the Constitution, in Article 281, in clause (2),- - (a) after the words "be deemed" the commas and words, "notwithstanding any judgment of any Court", shall be inserted and 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."

17. Soon after this, the National Assembly of Pakistan adopted a permanent Constitution for the Islamic Republic of ,Pakistan on the 10th of April 1973, and it was authenticated by the President of the National Assembly on the 12th of April 1973. Article 269 also re-adopted the provisions of ,Article 269 of the Interim Constitution with certain further modifications. 'The provisions of Article 269 read as follows :- "269.-(1) All Proclamations, President's Orders, Martial Law Regula--tions, Martial Law Orders and all other laws made between the twentieth day of December, one thousand nine hundred and seventy--one and the twentieth day of April, one thousand nine hundred and seventy-two (both days inclusive), 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 on any ground whatsoever. ..(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, between the twentieth day of December, one thousand nine hundred and seventy-one, and the twentieth day of April, one thousand nine hundred and seventy-two -(both days inclusive), 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 sentence passed by any authority in the exercise or purported exercise of powers as aforesaid, shall notwith--standing 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 on any ground whatsoever.

(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 the powers referred to in clause (2) or in execu--petition of or in compliance with orders made or sentences passed in exer--cise or purported exercise of such powers." .,Although the judgment of the High Court was pronounced on the 3rd of August, 1973, it has not taken into account the provisions of Article 269 of the Permanent Constitution but has based its decision upon the state of the ;law at the date of the institution of the petition in the High Court. The .;learned counsel appearing on behalf of the Governments in these appeals have, however, relied on the further amendments introduced by Article 269 in support of their contention that the cumulative effect of the amendments brought in by President's Order No. 3 of 1973 and the Permanent Constitu--petition had removed all defects, if any, in the legislative phraseology employed -to manifest the intention of the Constitution-makers that actions taken under the Martial Law Regulations promulgated either under the second Martial -Law regime or the third Martial Law regime, shall not be called in question in any Court on any ground whatsoever, even though such action may be coram .Non judice or tainted by mala fides. The High Court, according to the learned counsel appearing in support of these appeals, was, therefore, clearly wrong in taking the view that, notwithstanding these amendments, the exclusion of the jurisdiction of the High Court was not complete and that the High Court . Still retained the jurisdiction to examine acts which were done wholly incom--petently or without jurisdiction or were coram non judice or were taken mala fide.

18. Learned counsel appearing in support of these appeals maintain that, .After the decision of this Court in Zia-ur-Rahman's case, the validity of the 'Martial Law Regulations cannot be called in question for the reasons given sin the said judgment. As regards actions taken under the said Martial Law Regulations, which were sought to be protected by clause (2) of Article 28f of the Interim Constitution, the intention of the law-giver was that they too should be fully protected from scrutiny by Courts including the Supreme Court and the High Court, and, therefore, the authority competent to amend the Constitution forthwith brought in the Sixth Amendment to make good the shortcomings pointed out in the terminology of the original clause (2) of Article 281 of the Interim Constitution to further manifest and make clear the intention of the Constitution-makers. If there was any doubt left as to this intention, that too has now been removed by the terminology adopted in Article 269 of the permanent Constitution. Therefore, the ouster of jurisdiction is complete and the Courts cannot "on any ground whatsoever" call in ques--petition such actions, notwithstanding the judgments of this Court in the cases of Miss Asma Jilani and Zia-ur-Rehman.

19. The learned Advocate-General for the Province of Punjab has sought to supplement these contentions by pointing out that the intention of the Consti--tution-makers throughout was to see that no inroads should be allowed through Courts into the policy of social, economic and legal reforms upon which the new Government had embarked and, therefore, finding that the desired result had not been achieved as a result of the rigid interpretation given in the earlier judgments of Miss Asma Jilani and Zia-ur-Rahman, it resolved the doubt and removed the difficulty, if any, by enacting President's Order No. 3 of 1973 with retrospective effect notwithstanding any judgment of any Court by adding a jurisdiction ouster clause therein in the same terms as in clause (1) of Article

281. The amended clause (2), according to the learned Advocate-General, now was all-sweeping and could admit of no implications or exceptions. It not only validated all acts, but at the same time ousted the jurisdiction of all Courts. Hence neither the High Court nor the Supreme Court had any jurisdiction to entertain and hear the petitions of the respondents.

20. Article 269 of the permanent Constitution has, if anything, further made clear the mind of the Constitution-makers which was not only to confer legitimacy to the legislative acts done during the period of the previous Martial Law regimes but also to validate all actions taken or even purported to be taken under those legislative measures. Indeed, according to the learned Advocate-General, clause (2) was needed to validate acts which might not be covered by the legislative measures validated ~y clause (1), because, nobody acting under a valid legislative measure required further validation of his acts.

21. Reference in this connection has also been made to clause (4) of Article 270 of the permanent Constitution to highlight the anxiety of the Constitution-makers to protect all orders made, proceedings taken and acts done by any authority or any person which were made, taken or done or pur--ported to have been made, taken or done between the 26th of March, 1969, and the 19th of December, 1971, either in the exercise of powers derived from any of the legislative measures mentioned in clause (1) of Article 269 or in the purported exercise of the aforesaid powers notwithstanding any judgment of this Court and to protect them from being called in question before any Court on any ground whatsoever.

22. Learned counsel appearing on behalf of the respondents have, on the other hand, contended that if this was the objective sought to be achieved, then neither the amendment of clause (2) of Article 281 of the Interim Consti--tution by President's Order No. 3 of 1973 nor Article 269 of the permanent Constitution had achieved that result. In fact, the amendments have proved to be an exercise in futility. According to the learned counsel, neither .Article 281 of the Interim Constitution nor Article 269 of the permanent Constitution can give to any illegitimate law a higher position than a legiti-- mate law. They merely,- place illegitimate laws in a legitimate position and, therefore, the word "validly" in clause (2) of Article 281 of the Interim Con--stitution can bear only the same meaning as that word does in clause (1) thereof. The validity is, therefore, confined to competence alone and to no--thing else. The word "validly" in clause (2) cannot mean "free from all defects", particularly, since the result of putting such a wide construction on the word`"validly" in clause (2) would be that even appeals, revisions,, references and other judicial proceedings filed under any enactments made after the 25th March, 1969 or from judicial orders of officers appointed after the said date would become incompetent. But this could not have been the intention of the Constitution-makers.

23. Such an interpretation, it is further contended, would also be in conflict. With the other provisions of the Constitution such as Articles 3, 22(1) read with 7(1), 139(2), 177(1), 215, 216, 283 and 295 of the Interim Constitution.

24. Learned counsel appearing on behalf of the respondents have strongly relied on Article 3 of the Interim Constitution and Article 4 of the permanent Constitution to impress upon us that the most fundamental principle underly--ing both these Constitutions is the establishment of a system of Government of laws as distinguished from the Government of men, which was prevalent in this country during the Martial Law regimes and has called upon us as the custodians of the Constitution to see to it that the Constitution is not reduced,. In the words of Professor Bernard Schwartz of the New York University School of Law, into "mere maxims of political morality" and we are urged' to give it an interpretation that will make it a real living instrument of Govern--ment.

25. Copious references have also been made to the principles of interpre--tation enunciated by this Court in the case of The State v. Zia-ur-Rehmanr (pages 66 to 81), to support the contention that the restricted interpretation canvassed for by the learned counsel for the respondents should be accepted: on these very principles.

26. The learned counsel appearing for the appellant-Governments do not dispute the correctness of these principles but maintain that the Constitution-- makers had; following the observations of this Court in Zia-ur-Rehman's case, attempted to clarify their purpose and intent by the amendment of the Con--stitutional provisions, firstly, by President's Order No. 3 of 1973, and then by Article 269 of the permanent Constitution. They have referred us to the following passage at page 83 of our judgment in Zia-ur-Rehman's case :- "I will revert to this question later, but, for the present, it will be sufficient for me to point out that clause (2) does not, in view of the conscious, omission to incorporate an ouster clause therein, oust the jurisdiction of the Courts to judicially review the orders made, proceeding, taken or acts done or orders or sentences passed in exercise of the powers. Derived from the legislative measures validated by clause (1) or in execution of orders and sentence passed in exercise of such powers."

27. It is contended that now that President's Order No. 3 of 1973 has added these very words of ouster with retrospective effect, the validation is as full and effective as the validation of the legislative measures referred to in clause (1).

28. It is no doubt true that after the addition of the words of ouster ire clause (2) the particular argument based upon the omission of the said clause, which prevailed in Zia-ur-Rehman's case, will no longer be available; but if we are still called upon to decide, as was observed in Zia-ur-Rehman's case at page 80, "the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted", keeping in mind the principles consistently affirmed by the Courts then the question will still arise as to with respect to what the jurisdiction of the superior Courts has been so ousted and what is the exact nature of this ouster.

29. As learned counsel on both sides have placed reliance upon the principles of Constitutional interpretation enunciated in Zia-ur-Rahman's case it may be desireable to recapitulate them here before we proceed to apply them for construing the constitutional, provisions now under consideration. These principles are as follows :-

(i) The Constitution is a fundamental or organic or Supreme Law standing on a somewhat higher position than the other laws of the country.

(ii) The Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere.

(iii) The Courts are creatures of the Constitution; they derive their powers and jurisdictions from the Constitution and must confine themselves within the limits set by the Constitution.

(iv) Under a Constitution prescribing a system where there is a trichotomy of sovereign powers the judicial power must from the very nature of things be vested in the judiciary.

(v) Thus the judiciary does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction.

(vi) In the latter case an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that provisions seeking to oust the jurisdiction of superior Courts, even by a constitutional provision, are to be construed strictly with pronounced leaning against ouster.

(vii) It is not, however, the function of the judiciary to legislate or to question the wisdom of the law- giver if the law has been competently made without transgressing the limitations of the Constitution. If law has been competently made the judiciary cannot refuse to enforce it even if the result be to nullify its own decisions.

(viii) The law-giver has also every right to change, amend or clarify the law if the judiciary has found that the language used conveys an intent different from that which was sought to be conveyed by the law--giver.

(ix) The Constitution has to be construed like any other document reading it as a whole and giving to every part thereof a meaning con--sistent with the other provisions of the Constitution.

(x) As far as possible each provision of the Constitution should construed so as to harmonize with all the others.

30. This enumeration is by no means exhaustive. The learned counsel for the respondents has, relying on the statements of law contained in Vol. 16 of the Corpus Juris Secundum, impressed upon us to constantly keep in mind the main purpose sought to be accomplished by the adoption of the Constitu--petition and to so construe the same as to effectuate rather than destroy that purpose, which, according to him, is enshrined in Article 3 of the Interim Constitution and Article 4 of the permanent Constitution.

31. We are not unmindful of these provisions but after our decision in Zia-ur-Rahman's case we are no longer in a position to say that the Martial Law Regulations, under which the executive actions impugned in the present cases were taken, have not acquired the status of a "law" within the meaning of these Articles. In any event it is not possible for us to declare that a provision of the Constitution is not law because it seeks to oust the jurisdic--petition of the Courts with regard to certain subjects without affecting the judicial power itself. We cannot strike it down. We can only interpret it, according to the accepted rules of interpretation and define its nature and scope.

32. Before we proceed to interpret the provisions of Article 281 of the Interim Constitution as amended by President's Order No. 3 of 1973 we must deal with a preliminary objection raised to the validity of the amendment itself. It is contended on behalf of the respondents that these amendments are ultra vires the power of the President under Article 279 of the Interim Constitution. Clauses (1) and

(2) of Article 279 read as follows :- "279. Transitional powers of the President.-(1) The President shall, by Order, make such provisions.

33. 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) No Order shall be made under this Article after the thirty-first day of March 1973."

34. It will be observed that sub-clause (c) of clause (1) gives to the President for a short period of less than one year powers of even making amendment in the Constitution but it is contended that this power is only ancillary to the powers given, by sub-clauses (a) and (b) thereof. These provisions have 6 been modelled on the lines of some of the relevant provisions of section 9 of the Indian Independence Act, 1947. Clause (c) of the said section 9(1) also gave a similar power to the Governor-General to make, inter alia, modifications in the Government of. India Act, 1935 but no Court has held that this power was controlled by the other clauses of the said section. The decision's cited by the learned counsel himself take the view that the power of the Governor- General were co-equal to those of the British Parliament itself in that behalf (vide Moulvi Tamizuddin Khan v. Pakistan (PLD 1955 Sind 96This Court also held in the case of Dawarkadas v.

35. The State () PLD 1957 SC (Pak.) 72) that the Governor--General had in exercise of his power, to make additions validly incorporated section 92-A 'in the Government of India Act, 1935. This contention, therefore, cannot be accepted. The power given by sub-clause (c) of clause (1) of Article 279 of the Interim Constitution was in no way controlled by the other clauses. The amendment was competently made.

36. The further contention that in any event no amendment under Article 279 of the Interim Constitution would be intra vires if it had the effect of repealing the Constitution or destroying it does not fall to be considered in this, case, because, the amendment under challenge has by no -- means done that. The amendment, as already pointed out, merely added some words to the existing Article 281 of. The Interim Constitution by way of clarification which may well come within sub-clause (b) of clause (1) of Article 279.

37. Let us now examine as to what exactly has been done by President's Order No. 3 of 1973 and Article 269 of the permanent Constitution. The President's Order No. 3 of 1973 has merely added in the last but one line of clause (2) of Article 281 of the Interim Constitution after the words "shall be deemed" the words "notwithstanding any judgment of any Court" and then in the last line after the words "taken or done" added "and shall not be called in question in any Court" and provided that the above-mentioned two additions "shall be deemed always to have been so inserted". It will be noticed that no change has been made in the earlier provisions of this clause at all. What then is the result ? Does the clause, as now amended, mean anything more than this that the ouster of jurisdiction will operate with regard to those acts which under the earlier provisions "shall be deemed, notwithstanding any judgment of any Court, to be and always to have been validly made"? If so then obviously the ouster will not apply to any act, order, proceeding or thing done which is not to be so deemed to have been validly made. The question, therefore, still remains as to what is to be deemed under these provisions of clause (2) to have been validly done, taken or made. The words "notwithstanding any judgment of any Court" were, it appears, introduced to take away the effect of the decision of this Court in the case of Miss Asma Jilani under which these acts would have been invalid. This does not affect the decision in Zia-ur-Rahman's case, because,, there, the interpretation of these very words came up for consideration, and it was held that the validity sought to be conferred by these words did not extend to acts done, orders made or proceedings taken without jurisdiction, coram non judice or mala fide, because, such acts, orders or proceedings could neither be done in the exercise of powers derived from President's Orders, Martial Law Regulations, Martial Law Orders, Enactments, Notifications,, Rules, Orders or Bye-Laws, or even in the purported exercise of those powers: , The learned Attorney-General has contended that the word "purported" --would cover even such acts ; but this was precisely the argument that was advanced in the case of Zia-ur-Rahman and repelled by, this Court for the reasons elaborately given therein. We do not consider it necessary to repeat those reasons but have to point out that, for the same reason, we must reach the same conclusion in the present cases too.

38. The contention of the learned Advocate-General of Punjab that the' word "validly" gives legal cover not only to acts done illegitimately but also to acts done improperly and, therefore, covers even mala fide acts, has now to be noticed again, even though this contention too was repelled in the case of Zia-ur-Rahman. Copious references have been made by the learned Advocate-General to the dictionary meaning of the words "valid" and "validity" in order to press his contention that the grammatical meaning must be pre--feered, even though the same word has been used in an earlier clause of this very Article in a more limited sense. If this contention be correct, then, would the result not be, having regard to the wide words used in the earlier portions of this clause, that all conceivable acts done, proceedings taken or orders made by any authority or by any-person on or after the twenty-fifth day of March 1969, shall, notwithstanding the provisions of the President's Orders.

39. Martial Law Regulations, Martial Law Orders, Enactments, Notifications, Rules, Orders or Bye-Laws to the contrary be deemed to have been validly .Made and to be no longer open to challenge in any Court. Thus, even if an order or sentence had been passed by any authority or any person and such .a sentence was under the measures above-mentioned open to appeal or ;revision, such appeal or revision would now be barred, and if any' appeal or revision had been allowed after the twenty-fifth of March 1969, the decision in such appeal or revision would now be of no valid effect.

40. Could this have been the intention ? The learned Advocate-General was himself .Constrained to concede that this could not have been the intention.

41. The question, therefore, that arises is : Is the ouster of jurisdiction as .Complete as it is now sought to be urged ?' The learned Attorney-General himself had conceded before the High Court and has not resiled from that position before us that acts done, proceedings taken or orders made incompetently without jurisdiction would not be covered by the ouster clause. If in addition to this we now find that the ouster clause does not affect appeals or revisions, if any, permissible under those Orders, Regula--tions, Enactments, Notifications, Rules, Orders or Bye-Laws, then the ouster clause is not as comprehensive as is now sought to be urged. There are obviously certain- limitations. What these limitations are will be apparent from what has been conceded ; namely, acts which have not been validated: Acts which are done without jurisdiction do not qualify for validation under these provisions. Similarly, acts which were open to challenge even under the measures under which they were taken or done or purported to be so taken or done, are not validated. If so, then do acts which are coram non judice or mala fides stand on a different footing ? We think not. As we have already indicated in our judgment in Zia-ur-Rahman's case, mala fide acts cannot qualify for validation under the provisions of clause (2) of Article 281, because, they are neither acts duly done nor acts purported to be done either in the exercise of or in the purported exercise of powers derived from such Orders, Regulations, Enactments, Notifications, Rules, Orders or Bye-Laws. Indeed, mala fade acts stand on the same footing as acts done without jurisdiction.

42. Similarly, acts coram non judice also stand on the same footing, because, these words literally mean that they have been done by an .Authority or a body exercising judicial or quasi judicial powers which was not properly constituted even under the law under which it was set up and that its decision is not a decision of a competent authority. If this be so then such acts do not also qualify for validation and they have not been saved =from scrutiny by the ouster clause, no matter how widely that ouster clause may be worded. The ouster is of necessity to be limited upon a proper construction of the provisions of clause (2) of Article 281 only to those acts, .Orders or proceedings which qualify for validation.

43. The addition of the words "on any ground whatsoever" by Article 269 of the permanent Constitution does not also; in our opinion, make any material difference. The reference to clause (4) of Article 270 of the permanent Constitution is not, in our view, relevant for the purposes of interpretation of Article 269. This clause reads as follows :- "(4) All orders made, proceedings taken, and acts done by any authority, or any person, which were made, taken or done, or purported to have been made, taken or done, between the twenty-fifth day of March, one thousand nine hundred and sixty-nine, Wand nineteenth day of December, one thousand nine hundred and seventy-- one (both days inclusive), in exercise of 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 order made or sentence passed by any authority in the exercise or purported exercise of power as aforesaid shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done, so however that any such order, proceeding or act may be declared invalid by Parliament at any time within a period of two years from the commencing day by resolution of both Houses, or in case of disagreement between the two Houses, by such resolution passed at a joint sitting and shall not be called in question before any Court on any ground, whatsoever."

44. It will be observed that it re-affirms the validation given by clause (2) of Article 269 but merely adds that it would be open to Parliament "at any tine within a period of two years from the commencing day by resolution of both Houses" to declare such a validated order or act to be invalid. Resolutions even of both Houses of Parliament have only a sub-constitutional status and cannot derogate from or take away the power of the Courts given to them by the Constitution itself.

45. If the power is not taken away by clause (2) of Article 269, then clause (4) of Article 270 will not be able to produce that effect.

46. The result, therefore, to which we have arrived as a result of the interpretation of the provisions of Article 281 of the Interim Constitution as amended by President's Order No. 3 of 1973 and Articles 269 and 270 of the permanent Constitution, is that we are still unable to agree, upon the accepted principles of construction to which we have adverted earlier, that acts, orders or proceedings, which are done, taken or made without jurisdiction mala fide or coram non judice, have been saved from the scrutiny of the Courts by the ouster clause now incorporated in these provisions.

47. However wide a meaning is given to the word "validly", the result would still be the same, for, the validity that has been conferred is to acts done or purported to be done in the exercise of or in the purported exercise of powers derived from such Orders, Regulation, Enactments, Rules, Orders, Bye- Laws, etc. And to nothing else.

48. It is also wrong, in our view, to contend that the decision in Zia-ur Rahman's case with regard to acts, orders or proceedings to which validity had been conferred by clause (2) of Article 281 was based only on the absence of the ouster clause in it. The interpretation of the other provisions ha nothing to do with the ouster clause. It was referred to only to point out that, in any event, in the absence of such an ouster clause, the Courts were in no event debarred from enquiring into the validity or otherwise of the acts, orders or proceedings sought to be validated. Since the relevant provision of the said clause still remain the same our conclusion must, therefore, also be the same.

49. We are not also impressed by the arguments based upon the difficulties of the Government or the possibilities of chaos that are allegedly likely to result from the interpretation adopted by us. These are more imaginary than real. We do not envisage any such calamity. If a law is made for the imple--mentation of a policy of reforms and that law, though of doubtful validity has been subsequently validated, then all acts legitimately and honestly taken in the exercise of powers given by those laws will also be valid; but if an authority concerned has taken action in fraud of that law, that is to say, male fide, we see no legitimate reason why the Government should be anxious to protect such a dishonest officer or authority. The cause of the reform will not be advanced by such dishonest exercise of power by in--dividuals out of personal malice or for personal gain. Indeed, if an officer has so acted, we would expect the Government to see that the officer con--cerned is appropriately punished and the injustice done to the unfortunate victim righted. We do not appreciate the anxiety of the appellant-Govern--ments to protect such male fide actions.

50. Male fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of male fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides mutt be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of male fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging male fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case.

51. "Male fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also male fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person res--ponsible for taking the action has been motivated by any one of the con-- siderations mentioned above. A mere allegation that an action has been) taken wrongly is not sufficient to establish a case of male fides, nor can ah case of male fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken male fides. But in order to make out a case of male fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. Similarly, if the acquisition of land or the taking over of industries is authorised in certain specified circumstances and for certain specified purposes, then the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law. male fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence :n its possession.

52. It is true that in the case of Abdul Baqi Baluch v. Government of Pakistan (PLD 1968 SC 323) it had been pointed out that in the case of a detention of a person the initial onus is on the detaining authority to prove that detention was lawful but this principle does not apply in other cases where the onus is initially upon the person alleging male fides to prove male fides. It would be wrong, therefore, in such cases to call upon the authority to produce evidence in its possession to justify its action merely on the basis of a vague allegation that the action has been taken mala fide. In such cases the party making the allegation should first be called upon to adduce proof and after he has led evidence to make out a prima facie case then and only then should the other side against whom the allegation of mala fides is made be called upon to justify the action. If the Courts keep this in view, we venture to think that the difficulties to Which the learned counsel appearing on behalf of the Governments have referred will not arise.

53. Lt.-Col. Farzand All v. Province of West Pakistan (PLD 1970 SC 98), where the question arose as to whether compulsory retirement of an officer was mala fide. This Court observed as follows :-- "In the present case from the materials that have been placed before us, all that can be said is that the functionaries responsible for deciding the question of the retirement of the appellant in Civil Appeal No. 100 of 1966 may have made a wrong judgment but there is nothing before us which would lead us to the inference that the action was neces--sarily male fide or the result of any conspiracy. There is no allegation that any one in particular was ill-disposed towards him or had any special personal reason for getting rid of him. Nor did he state as to what was the nature of the conspiracy against him or who were the alleged conspirators. A general allegation of hostility against all senior officers from even before Partition was not sufficient to establish male fides of those who were ultimately responsible for the decision to compulsorily retire him. Mala fides have to be alleged with particularity and a mere assertion of a general malice cannot be sufficient for this purpose."

54. The learned Attorney-General has also contended that in any event a distinction has to be made between the cases of those removed or retired under Martial Law Regulation No. 58 in 1969 and those compulsorily retired under Martial Law Regulation No. 114. The Constitutional petitions of those proceeded against under Martial Law Regulation No. 58 are, it is said, clearly barred by laches and, in any event, those transactions are now past and closed transactions. They cannot be reopened at this stage.

55. Aziz ur Rahman Choudhury v. M. Nasiruddin (PLD 1965 SC 236). The learned counsel for the respondents, on the other hand, contend that as no information regarding disposal of the review petitions has yet been conveyed to those who have not been re-instated so far their matters are still pending.

56. We do not propose to express any final opinion on these questions, as the case of each petitioner in the High Court must be considered on the basis of its own facts. It will be for the High Court to say whether in a particular case the transaction is past and closed, but this much must be pointed out that the cases of those proceeded against under Martial Law Regulation No. 58 do stand on a different footing and must be dealt with differently. The question of laches will arise for consideration in those cases and will no doubt be taken into consideration by the High Court.

57. For the reasons given above, we have come to the conclusion that the High Court rightly decided the preliminary objection. Actions or proceedings taken without jurisdiction or mala fide or orders of a judicial or quasi judicial nature which are coram non judice are not validated by either clause

(2) of Article 281 of the Interim Constitution as amended by the' President's Order No. 3 of 1973 or by clause (2) of Article 269 of the permanent Constitution.

58. These appeals, are, accordingly, dismissed, but there will be no order as to costs as these appeals came up before us under a certificate granted by the High Court itself and they involved consideration of important questions of law.

59. The High Court will now proceed to consider each individual petition pending before it on merits in the light of the observations made in this judgment as regards the allegations of mala fides.

60. SALAHUDDIN AHMED, J.-I respectfully agree with the order proposed to be passed by my Lord the Chief Justice.

61. With due deference to my Lord, however, I am unable to agree with' him that Article .79 of the Interim Constitution gave unfettered powers to the x President of Pakistan to amend the said Constitution even though it was fort a limited period of about one year.

62. Under Martial Law Regulation No. 114 a Notification was issued on the 3rd of March, 1.972, whereby a large number of Government servants were prematurely retired from Government service under the orders of the President. Clause (4) of the said Regulation sought to protect action taken under the Regulation from being called in question by or before any Court including the Supreme Court and a High Court, and at first there was no provision for review of the order of removal. Two days later, however, a review before the Chief Martial Law Administrator was provided, but the Chief Martial Law Administrator was not required to give any opportunity to the aggrieved person while considering the review. The order passed on review was similarly protected from being called in question in any Court. The President in the purported exercise of the powers given to him by Article 279 of the Interim Constitution made President's Order No. 3 of 1973 on the 3rd of April 1973, whereby he amended Article 281 of the Interim Constitution with the avowed object of doing away with the effect of "any judgment of any Court".

63. Article 96(5) of the Interim Constitution provides that the Constitution) enacted by the National Assembly, or a bill amending this Constitution passed) by the Assembly, shall not require the assent of the President of Pakistan, and its authentication by the President of the National Assembly shall be sufficient for its enforcement. Under sub-Article (6) it is provided that whenever the National Assembly sits under this Chapter, no business other than the business with respect to the making of the Constitution, or an amendment) of this Constitution, shall be transacted. Sub- Article (I) deals with the election of the President of the National Assembly functioning under Chapter 4, Part III of the Constitution. The President of the National Assembly is not necessarily a person who is also the President of Pakistan as contemplated under Article 50 of the Interim Constitution.

64. It is, thus, evident that the Interim Constitution provides for the amend--ment of the Constitution by the National Assembly which will become effec--tive on its authentication by the President of the National Assembly only, anal without any assent of the President of Pakistan. The framers of the Constitution expressly excluded the President of Pakistan from having any say in the matter of the framing of the Permanent Constitution or amendment of the Interim Constitution. It may be mentioned here that there was no such] provision in the Indian Independence Act, 1947.

65. Article 279 of the Interim Constitution deals, as its marginal note shows with the transitional powers of the President of Pakistan. Sub-Article (1),I clause (c) of Article 279 must, therefore, be considered strictly with reference to the matters directly connected with the transition from the existing' order to the effective operation of the Interim Constitution. This is how the apparently conflicting provision under Article 279(l)(c) can be reconciled with the clear provisions of Article 96(5) and (6).

66. Such interpretation is based on the accepted rules of construction of a written instrument.

67. According to another rule of construction where there is a specific provision in the Constitution for its amendment, it must prevail over another provisi on which apparently retracts from the former, unless there are clear indications to the contrary. These indications, however, must be in express terms, and in keeping with the other provisions of the Constitution and consistent with the spirit of the Constitution.

68. The interpretation which I have sought to put on the powers of the President under Article 279 is not in any way affected by what has been provided in sub-Article (5) thereof. Sub-Article (5) says that any order made under this Article shall be subject to alternation, modification, or repeal by the National Assembly in accordance with Chapter 4 of Part III.

69. On a consideration of the Interim Constitution as a whole and its relevant provisions mentioned above, I am of the view that the framers of the Consti--tution in their wisdom have scrupulously kept out the President of Pakistan from having any say either in the matter of the Permanent Constitution which the National Assembly was required to frame under Article 95 of the Constitu-- petition or in the amendment of the Interim Constitution.

70. M therefore, incompetent. The object sought to be achieved by the amendment could have been achieved in the manner provided for under Article 96 of the Interim Constitution.