1. Order under clause (1)--
(a) prohibiting the making of an Order for the detention of a person, or
(b) for the grant of bail to a person detained, under any law providing for preventive detention ; and
(4) Where- (4) Where-- Court for an Order under para- Court for an Order under para-- graph (a) or paragraph (c) of graph (a) or paragraph (c) of clause (1), and clause (1), and
(b) the making of an interim Order (b) the making of an interim Order would have the effect of prejudic- would have the effect of prejudic-- ing or interfering with the carry- ing or interfering with the carrying ing out of a public work or of out of a public work or of other-- otherwise being harmful to the wise being harmful to the public public interest or of impending the interest are of impending the assessm ent or collection of public assessment or collection of public revenues, revenues, the Court shall not make an interim the Court shall not make an in-- Order unless the prescribed law terim Order unless the prescribed officer has been given notice of the law officer has been given notice application and he or any per- of the application and he or any son authorised by him in that be- person authorised by him in that half has had an opportunity of behalf has had an opportunity of being heard and the Court, for being heard and the Court, for reasons to be recorded in writing, reasons to be recorded in writing, is satisfied that the interim Order- is satisfied that the interim Order--
(i) would not have such effect as (i) would not have such effect as aforesaid ; or aforesaid ; or (ti! Would have the effect of sus- (ii) would have the effect of sus-- pending an Order or proceeding pending an Order or proceeding which on the face of the record which on the face of the record is without jurisdiction." is without jurisdiction.
2. (4-A) An interim Order made by a made to it to question the validity or legal effect of any Order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessm ent or collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier."
3. The first category of arguments addressed by Mr. A. K. Brohi involves of the interpretation of the language of clause (4-A) so far it affects the power of the High Court to grant interim relief, pending final adjudication of an application for relief under Article 199 of the Constitution. In this regard, Mr. Brohi firstly submitted that the embargo placed by clause (4-A) on the duration of time for which an interim Order is to remain in force is relatable only to those interim Orders that are passed ex parte, known as ex parte interim Orders, and not the ones passed after giving an opportunity .Of hearing to the prescribed Law Officer in terms of clause (4) of Article 199.
4. Learned counsel supported this assertion by pointing out that the Consti--tution under its Article 199 has conferred upon the High Court powers of very high competency ; inter alia (i) power to issue directions ; and (ii) power to assess and declare any act done as an act of no legal effect and done or taken without lawful authority, and the power to make an interim Order is to be construed as incidental to the power to make a final Order, in so much as, the object of making an interim Order is to preserve the corpus of the dispute till such time as the High Court can finally dispose of the same and since any amendment which seeks to adversely affect the jurisdiction of a superior Court has to be construed very strictly, it could, therefore, be implicitly assumed that there would be no necessity to place any restrictions on the power of the High Courts to make an interim Order by means of clause (4-A), and the embargo on the duration of time is to be construed only in relation to ex parte interim Orders.
5. Learned counsel submitted, as a point of note about clause (4-A) that if the Legislature had so desired, it could have made it an integral part of clause (4), and the argument would have been then plausible that all interim Orders passed in accordance with the machinery prescribed under clause (4) are limited to the period of 60 days. The fact that this has not been done, according to learned counsel, indicates that the intention of the Legislature was that clause (4-A) would apply only to those Orders passed otherwise than in accordance with the procedure specified in clause (4). Thus if an interim Order has been passed fn terms of the prescribed procedure in clause (4) after the hearing having been given to the prescribed Law Officer, the life of such an Order, according to learned counsel, is not meant to be limited to 60 days.
6. Mr. Brohi sought to fortify this argument by urging that it is one of the very basic principles of statutory construction that it is not to be assumed that the Legislature would place an embargo which is wholly arbitrary or unreasonable, and since it is obvious that the cases before the High Court cannot be finally disposed of in 60 days, the only reasonable interpretation which can conceivably be placed on the embargo on the limitation of the operation of an interim Order is that it is meant only for those interim Orders which have been issued without notice to the prescribed Law Officer. Mr. Brohi submitted that in the cases wherein prescribed Law Officer has, in accordance with clause (4) been given notice of the application and an opportunity of being heard, and the Court has also recorded the reasons in writing stating clearly that the interim Order would not have the effect of prejudicing or interfering with the work of carrying out of a public work or being harmful to the public interest or of impeding, the assessment or collec--tion of public revenues or would have the effect of suspending an Order which on the face of the record is without jurisdiction, then there is conceivably no reason for limiting the life of such an Order to 60 days. To do so, according to Mr. Brohi, would lead to the ridiculous result that, although the Court has recorded a judicial finding after hearing the prescribed Law Officer to the effect, for example, that the making of an interim Order would not be impeding the assessment or collection of public revenues, yet the interim Order must lapse without any fault of the petitioner. Mr. Brohi submitted that the accepted principle of law is that an act of a Court is not to harm or prejudice a party, and the fact that due to the arrears of work in a High Court or for the reason of the laches on the part of the opposite-party could not have been meant to penalise a petitioner who has obtained a judicial finding from the Court in his favour, as stated above.
7. Mr. Brohi's next line of arguments on the language of clause (4-A) was that it clearly relates to two categories of Orders ; those passed under a law specified in Fart I of the First Schedule ; and those relating to or connected with the assessment or collection of public revenues. In the first category, the act done by an Authority is protected whether it has been done under the law or purports to have been done under the law. In the second category, since the word 'purports' in absent, a distinction has necessarily to be drawn between the cases falling under the second category.
8. According to him. Therefore, the interpretation which is to be placed on the language of clause (4- A) should bear the following formulation "(4-A).-An interim Order made by a High Court on an application made to it to question the validity or legal effect of any Order made, proceedings taken or act done by any Authority or person which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessment or collection of public revenues, shall cease to have effect on the expiration of a period of 60 days following the day on which it is made, unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier."
9. In this behalf, Mr. Brohi further submitted that, although in the case of laws specified in Part I of the First Schedule, Orders passed under a law and Orders which purport to be passed under a law have been protected, this does not mean that any and every Order which states that it has been passed under such a law is protected. According to him an Order can only be described to have been purportedly made under a statute if the officer concerned has- "(i) freely applied his mind to the extent of his power under the statute ;
(ii) acted in good faith and
(iii) made a bona fide error which is, however, not of such a nature as to amount to an act in excess of jurisdiction. In other words it must be an error of the type which a reasonable man could have made."
10. Mr. Brohi explained this by submitting that if an officer passes an Order in reckless or conscious disregard of the statute that Order has not even been purportedly made under the statute and such an Order cannot conceivably be protected. In this connection, reliance was placed on the meaning of the word "purported", given by Dorab Patel, J. In PLD 1970 Kar. 427 which is as follows : "It seems to me that action which is described as purported to have been taken under a statute can only mean something which was intended to have been done in pursuance of the provisions of that statute but which through human error did not fall within the scope of the statute therefore, an act in deliberate disregard of the provisions of a statute cannot be treated as an act purported to have been done under that statute."
11. Mr. Brohi further submitted that this point is more conclusively decided by the Supreme Court in State v. Zia-ur-Rehman (PLD1973SC49) and Federation of Pakistan v. Saeed Ahmed (PLD1974SC151) that irrespective of the Constitutional language used, acts which are mala fide or in excess of jurisdiction cannot possibly be protected.
12. According to Mr. Brohi, therefore, a mala fide act or an act in excess of jurisdiction or the one which cannot be described to have been 'purportedly' made under the law is void ab initio, and if an interim Order has been passed by a High Court on an application from the aggrieved person under Article 199 of the Constitution, the embargo of 60 days' time placed under clause (4-A) would not be applicable.
13. Mr. Brohi then submitted that so far section 14 of the Constitution (Fourth Amendment) Act, 1975 is concerned, it does not effect a Constitu--tional amendment at all, for, unlike the preceding 13 sections, it does not state that it amends any Article or a provision of the Constitution. It may be mentioned here that section 14 states that an interim Order such as is referred to in clause (4-A) of Article 199 of the Constitution made by a. High Court before the commencement of this Act shall cease to have effect on the expiration of 60 days from such commencement, unless the ease is finally decided, or the interim Order is withdrawn by the Court earlier. The argument of Mr. Brohi precisely is that since the language of section 14 is not to the effect so as to direct or provide for an amendment of any Article or a provision of the Constitution, the effect to this provision of Constitution (Fourth Amendment) Act, 1975 cannot be given in terms of clause (6) of Article 239 of the Constitution which provides that the Constitu--tion will be amended only 'in accordance with the terms' of the Amending Act.
14. Mr. A. K. Brohi finally submitted that if these arguments do not prevail, then he would press the submission that the Constitutional amendment brought about by the Constitution (Fourth Amendment) Act, 1975 is to be regarded as an utter destruction of judicial power which cannot be achieved by the power of amendment conferred by Part XI of the Constitution under Articles 238 and 239. In this behalf learned counsel placed reliance on the scheme of the Constitution which, according to him, is fully reflected in its Preamble, wherein it has been asserted and emphasised that the 'sovereignty' belongs to 'Almighty Allah' alone, and the authority to be exercised by the 'people' of Pakistan within the limits prescribed by Him is a sacred trust, and that "the independence of the Judiciary shall be fully secured."
15. Learned counsel argued that once the people of Pakistan gave the Constitution to this country, that act alone is the 'sovereign' act, and not any other act which amends the Constitution and which has been entrusted to the Parliament as an Agent. In this behalf, he argued that the Parliament cannot be given the same status of a Constituent Assembly which is set up as a sovereign body, with no limitation on its power to adopt a Constitutional instrument, in any terms, desired by it. But once that Constitutional document has been framed, it imposes a limitation on all organs of the State which draw their power from or under that document, and in a tripartite system of Government envisaged by the Constitution, an act of Parliament which is co-equal with the Judiciary, the third partner being the Executive, cannot be treated as a sovereign act. Learned counsel further stressed that the Parliament, like the other two principal organs of the State, is subject to the Constitution, and its position can never be considered as analogous to a Constituent Assembly. While conceding that it has power to amend the Constitution, that power, according to learned counsel being a power contained in the Constitution itself, is to be construed within the framework of the Constitution, and ought not to be given so wide a content as to enable Parliament to destroy the power of the Constitution itself.
16. This argument was highlighted so as to emphasise the limited argument that the amendment brought about in Article 199, by the addition of clause (4-A), amounts to the destruction of judicial power vested in the High Courts, for, the power to maintain the status quo pending final decision by the High Court is fundamental to the exercise of judicial power. If a stay Order is not granted, and the consequence is that the property which is sought to be protected by the petitioner under the relief claimed by him under Article 199 is destroyed due to the embargo of time placed on the duration of the interim Order, no effective relief can ever be granted by the High Court, even though it was admissible in the final result. The grant of interim relief, it was thus argued, is an inherent aspect of the power to grant final relief, and the curtailment of the one is pro tanto a curtailment of the other.
17. Mr. Brohi emphasised that granting of relief under Article 199, is, as the opening words of this Article clearly state, contingent on a prior showing by the petitioner that no other adequate relief is available to him under the law, and if, therefore. Relief is admissible to him under the Constitutional power vested in the High Court, then the deprivation of the right in property which could be protected by the interim Order amounts to destruction of judicial power. According to him, therefore, meaning that must be given to the word "amendment" in Chapter XI of the Constitution is "to make such changes which do not destroy the basic feature and fundamental scheme of the Constitution".
18. Mr. Yahya Bakhtiar, learned Attorney-General who assisted the Court as amicus curiae, supported the amendments introduced by the Constitution (Fourth Amendment) Act, 1975 as being the integral part of the Constitution. He argued that the power of amendment contained in Part XI of the Constitu--tion is an exercise of 'constituent power' vested in the Parliament, and cannot be delegated to the level of an ordinary legislative function conferred upon the Parliament in the other Parts of the Constitution.
19. Referring to the argument of Mr. A. K. Brohi that the Constitution was handed over to the nation by the 'people' of Pakistan and that they entrusted the task of the amendment of the Constitution to the Parliament as their Agent, learned Attorney-General submitted that reference to the Preamble to the Constitution would be totally inapt as the text of a Preamble is to be construed as a legal fiction, and in the words of Hamoodur Rahman, C. J. In State v. Zia-ur-Rehman, 'in the case of any doubt as to the intent of the law-maker, it may be looked at to ascertain the true intent, but it cannot control the substantive provisions thereof'.
20. Learned Attorney-General emphasised that the Judiciary in the scheme set out in the Constitution has no power to strike down any provision of the Constitution, and he made extensive references to the passages from the judgment in State v. Zia-ur-Rehman, particularly to the following "In exercising this power the Judiciary claims no supremacy over other organs of the Government but acts only as the Administrator to the public will. Even when it declares a legislative measure unconstitutional and void it does not do so because the judicial power is superior in degree or dignity to the legislative power; but because the Constitu--tion has vested it with the power to declare what the law is in the cases which come before it. It merely enforces the Constitution as a paramount law whenever a legislative enactment come into conflict with it because it is its duty to see that the Constitution prevails. It is only when the Legislature fails to keep within its own Constitutional limits, the Judiciary steps in to enforce compliance with the Constitution.
21. Again if law has been patently and validly made the Judiciary cannot refuse to enforce it even if the result of it be to nullify its own decision. The Legislature has also every right to change, amend or clarify the law if the Judiciary has found that language used by the Legislature conveys an intent different from that which was sought to be conveyed by it. The Legislature which establishes a particular Court may also, if it so desires, abolish it.
22. So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provi--sion of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provi--sion of the Constitution means or does not mean, even if that particular--lar provision is a provision seeking to oust the jurisdiction of this Court.
23. This is a right which it acquires not de hors the Constitution but by virtue of the fact that it is a superior Court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself."
24. Learned Attorney-General, however, submitted that whereas the Judi--ciary can claim no supremacy over the other two equally independent organs of the State, it has no doubt the power to scrutinise the validity of even the Constitutional measure seeking to amend the Constitution. In this regard, he pointed out the following portion from State v. Zia-ur-Rehman "If a Constitutional measure is adopted in a manner different to that prescribed in the Constitution then the validity of such a measure may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some supra-Constitu--tional document"
25. Learned Attorney-General took exception to Mr. Brohi's argument by the amendment introduced in Article 199 the powers of the High Courts have been taken away. He emphasised that High Court has yet the power to make the final Order, and the embargo of time placed on the period for which an interim Order is to remain in force cannot be treated as annihilation or deprivation of power of the High Court.
26. As to the interpretation of the language of clause (4-A), with reference to the embargo of 60 days imposed upon interim Orders envisaged by this clause, learned Attorney-General took the stand that the embargo is relatable not only to those passed ex parte, but also to the ones made after the limita--tions of clause (4) are satisfied. Referring to clause (4) he submitted that the High Court has no power to pass an interim Order in respect of cases falling under the categories mentioned therein, and if an interim Order is passed after the condition imposed by the provisions of clause
(4) are ful--filled, then that Order by virtue of clause (4-A) is limited to 60 days' duration.
27. In reply to the second line of Mr. Brohi's arguments on the inter--pretation of clause (4-A) learned Attorney-General submitted that the language contained therein is indivisible, although it deals with two classes of cases; one falling under the category which relates to laws preserved by Part I of the First Schedule of the Constitution, and the other being relatable to assessment or collection of public revenues.
28. According to learned Attorney-General reference made by Mr. Brohi to the word "purports", or his arguments that a mala fide Order is not an Order "purported" made under a statute has no bearing on the interpretation of clause (4-A).
29. He submitted that the distinction in any case would be irrelevant, for, the effect of the provision of this clause is on the interim Orders of the categories specified therein. In other words the submission of learned Attorney-General was that the question whether an Order pertaining to the two categories of the cases specified in clause (4-A) is passed in exercise of power under the law or purported exercise of law is the question which is to be decided by the final Order passed by the High Court on an application under Article 199. Learned Attorney-General then submitted that the jurisdiction vested in the High Court under Article 199 of the Constitution is made specifically subject to the Constitution in that Article, and, therefore, curtailment of that jurisdiction by amendment of the Constitution is not open to exception. He submitted that in any case there has been no actual curtail--ment of the jurisdiction since the embargo has been placed on an interim Order which by its very nature is an exercise of discretionary jurisdiction by the High Court and petitioner cannot claim it as a right not to speak of a right protected by the Constitution.
30. In so far as the interpretation of section 14 of the Constitution (Fourth Amendment) Act, 1975 is concerned learned Attorney-General submitted that the provisions contained in the Bill when it becomes an Act of Parliament under clause (6) of Article 239 acquire the status of a part of the Constitution and it is. Therefore, not necessary that the language of the specific Article should contain a direction regarding amendment to be made in any particular article or part of the Constitution.
31. I might add here that the arguments on the lines addressed by Mr. A. K. Brohi and the learned Attorney-General were adopted by the other counsel appearing in the case and references to certain reported cases were also made in particular to State v. Zia-ur-Rehman and Federation of Pakistan v. Saeed Ahmed by the learned counsel. 1, however, feel that it would suffice if the scope of the arguments addressed at the Bar is noticed for the time being.
32. Since the arguments relating to the nature and the scope of the power of amendment of Constitution conferred under Part XI of the Constitution are of significant Constitutional importance, I would like to deal with this aspect first.
33. The basic argument advanced by Mr. A. K. Brohi is that it is not to be assumed that the original framers of the Constitution I.e. The people of --Pakistan, had intended, in view of the tripartite form of Government prescrib--ed by them in the Constitution, to invest the Parliament, an equal partner with the Judiciary, with the power to destroy the power granted by them to the Judiciary under Article 199, and the power of amendment of the Constitu--tion granted under Part XI is to be regarded as if the power has been delegat--ed to an Agent, who has to exercise the power within the limitations inherent--ly imposed upon by the original framers of the Constitution.
34. For this argument support is sought from the Preamble of the Constitu--tion which reads as follows : "Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakis--tan within the limits prescribed by Him is a sacred trust ; And whereas it is the will of the people of Pakistan to establish an Order- Wherein the State shall exercise its powers and authority through the chosen representatives of the people ; Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed ; Wherein the Muslims shall be enabled to Order their lives in the individual and collective spheres in accordance with the teachings and require--ments of Islam as set out in the Holy Qur'an and Sunnah ; Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures ; Wherein the territories new included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed ; Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality ; 'wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes ; Wherein the independence of the judiciary shall be fully secured ; Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded ; So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity ; Now, therefore, we the people of Pakistan, Conscious of our responsibility before Almighty Allah and men ; Cognisant of the sacrifices made by the people in the cause of Pakistan ; Faithful to the declaration made by the Founder of Pakistan.
35. Quaid-i-Azam Muhammad Ali Jinnah, that Pakistan, would be a democratic State based on Islamic principles of social justice ; Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny ; Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new Order ; Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution."
36. The argument that the ultimate legal sovereignty under the Constitutions resides in the 'people' and the Constitution is given by 'people' has been the subject-matter of study by Jurists, and has been examined by Courts in several cases. Some thinkers say that the conception that Constitution proceeds from the 'people' can only be regarded as a 'rhetorical flourish', probably to lay its foundation on the more solid basis of popular-will., and to give it unquestioned supremacy, for, even since the days of Justinian it was thought that the ultimate legislative power including the power to frame a Constitution resides with the 'people' and, therefore, any law or Constitu--tion which mediates or immediately proceeded from them.
37. It may be said that the assertion in the Preamble that it was the 'people who enacted the Constitution raises an incontrovertible presumption, and a Court is precluded from finding out the truth. There is similar Preamble to the Constitution of the U. S. A. Chief Justice Marshall was called upon to decide the question whether that Constitution proceeded from the people and he did not seek shelter under the Preamble by asserting that the Court is concluded by recital therein but took pains to demonstrate by referring to the historical facts that the Constitution was ratified by the people in he State Conventions and, therefore, in form and substance, it proceeded, from the people themselves. [McCulloch v. Maryland (4 Wheaton 316)].
38. Here is what Walter Lipman has to say about the Founding Fathers representing "We the people of United States . . . . Ordained and established this Constitution."
39. "On September 17, 1787 about 40 members signed the draft on which they had been working since May 25th, for 116 days. In Article VIl of their text they stipulated that if and when Conventions in 9 States had ratified it then for those 9 States the people of the United States would have ordained and established the Constitution. In this context a majority of the delegates elected to the 9 State Conventions were deemed to be entitled to act as the people of the United States."
40. What has been said about the 'Founding Fathers' who framed the Constitution of United States for the 'People' of United States is equally true of the Revolutionary Constitution of France, and even of the Constitution of Fourth French Republic of 1946. Added to this are the examples of Weimar Constitution of Germany and the Soviet Constitution. These historical facts show that the proposition that the 'people' establish the Constitutional fabric of the Government under a written Constitution is just a myth-perhaps a useful fiction-a convenient metaphor.
41. Let me, however, indulge in the legal fiction and assume as the Preamble declares that it was the 'people' who framed the Constitution. Could it be said after the Constitution was framed that the 'people' still retain and can exercise their sovereign Constituent power to amend or modify that document by virtue of their legal sovereignty?
42. This brings in the question what is, after all, meant by sovereignty.1 According to Austin, "a person or body is said to have legal sovereignty when he or it has unlimited law-making power, and that there is no person o body superior to him or it".
43. The Supreme Court of U. S. A, has held in many cases that the .Sovereignty vests in the 'people'. The same view has been taken by write like Jameson, Williamson and others.
44. But it is difficult how the unorganised mass of people can legally b sovereign. This is only to put more explicitly what Austin meant when he said that political power must be a determinate person or body of persons; for, the people, at large, the whole people, as distinct from particular person or persons, are incapable of concerted action and hence, of exercising political power and, therefore, of legal supremacy.
45. However, the supremacy enjoyed by the Constitution in a Federal Stat' is said to lie in the Constitutional document, which must be regarded a sovereign. In the same context it has been said that the sovereignty in the `people' is vested by 'significance' or by 'definition'.
46. Willoughby has said that "the sovereignty of the people, popular sovereignty and national sovereignty cannot accurately be held to mean that under an established Government, the sovereignty remains in the people. It may mean, however, that the Constitutional jurisprudence of the State to which it has applied is premeditated upon the principle that no political or individual organ of the Government is to be regarded as the source whence by delegation all the other public powers are derived, but that upon the contrary, all legal authority offends its original source in the whole citizen body or in an electorate representing the Government." (See Willoughby 'Fundamental Concepts of Public Law', pp. 99-100).
47. Perhaps, it would be correct to say that the possession of unlimited law-making power is the criterion of legal sovereignty in a State, for it is difficult to see how there can be any superior to a person or a group that can make laws on the subject since that person or group would pass a law abolishing the power of the supposed superior.
48. This, however, does not mean that 'people' have no right to frame the Constitution, by which they would be governed. Of the 'people' as well as of the body-politic all that one can say is that they are not sovereign, but they have natural right to full autonomy or to self-Government. The 'people' exercise this right when they establish a Constitution.
49. The question may then be asked if the 'people' by designing their representatives and by transmitting to them the power to amend the Constitu--tion, lose or give up possession of their inherent constituent power ?
50. There was great controversy among the civilians in the Middle Ages -Whether, after the Roman people had transferred their authority to legislate ,to the Emperor, they still retained it or could reclaim it. (See Carlyle, "A History of Medical Political Theory in the West", Vol. VI, pp. 514-515). There is always a distinction between the possession of a right or power and the exercise of it. It was in the exercise of the 'constituent power' the -the 'people' framed the Constitution and invested the Amending Body with -the power to amend the very instrument they created. The instrument ,so created, by necessary implication, limits the further exercise of the power ,by them, though not the possession of it. The Constitution, when it exists, is supreme over the 'people', and as the 'people' have voluntarily excluded themselves from any direct or immediate participation in the process o making amendment to it and have directly placed that power in the representatives without reservation, it is difficult to understand how the 'people' can juridically resume the power to continue to exercise it. (see Dodge v. Woolsay ((1856) 18 How. 331). It would be absurd to think that there can be two bodies for doing the same thing under the Constitution. It would be most incongruous to incorporate in the Constitution a provision for its amendment, if the constituent power to amend can also be exercis::3 at the same time by the mass of the people, apart from the machinery provided for the amendment. In other words, the people having delegated the power of amendment, that power cannot be exercised in any way other than that pres--cribed, nor by any instrumentality other than that designated for that purpose by the Constitution. There are many Constitutions which provide for active participation of the people in the mechanism for amendment either by way of initiative or referendum as in Switzerland, Australia and Eire. But in our Constitution there is no provision for any such popular devise and the power. Of amendment is vested only in the Amending Body.
51. It is said that "it is within the power of the people who made the Constitution to unmake it, that it is the creature of their own will and exists only by their will. (See Cohens v. Virginia (6 Wheat (19 U S)
52. 264).
53. This dictum has no direct relevancy on the question of the power of the people to amend the Constitution. It only echoes the philosophy of John Locke that people have the political right to revolution in certain, circumstances and. To frame a Constitution in the exercise of their revolu-- tionary constituent power.
54. When the French political philosophers said that the nation alone' possesses the 'constituent power', and an authority set up by a Constitution created by the nation has no 'constituent power' apart from a power to amend that instrument within the lines originally adopted by the people what is meant is that the nation cannot part with the constituent power, but only the power to amend the Constitution within the original scheme of the Constitution in minor details.
55. Some jurists refer to these two powers, namely, the "constituent power" and the "amending power" as two distinct powers. According to Carl, J. Friedrich, the 'constituent power' is the power which seeks to establish a Constitution which, in the exact sense, is to be understood the de facto residuary power of a not inconsiderable part of the community to change or replace an established Order by a new Constitution. The constituent power is the power exercised in establishing a Constitution, that is the fundamental decision on revolutionary measures for the organization and limitation of a new Government. From this constituent power must be distinguished the; 'amending power' which changes an existing constitution in the form provided by the Constitution itself, for, the 'amending power' is itself a constituted authority. And he further points out that in French Constitutional Law the expression 'pouvoir conatituant' is often used to describe the 'amending. Authority' as well as the constituent power, but the expression 'constituent power', used by him is not identical with the 'pouvoir conatituant' of they French Constitutional Law (See Carl, J. Friedrich, "Constitutional Government and Politics" (1937), pp. 113, 118, 162 and 521).
56. It is, however, unnecessary to enter this arid tract of what Lincoln called 'pernicious abstraction' where no green things grow, or resolve the metaphy--sical niceties, for, under our Constitution, there is no scope for the constituent power of amendment being exercised by the people after they have delegated F power of amendment to the Amending Body. To what purpose did that Instrument give the Amending Body the power to amend the Instrument unless it be to confer plenary power, upon the Amending Body.
57. It is, therefore, only in revolutionary sense that one can distinguish between 'constituent power' and 'amending power'. It is based on the assumption that the constituent power cannot be brought within the frame--work of the Constitution. "To be sure, the amending power is set up in the hope of anticipating a revolution by legal change and, therefore, as an additional restraint upon the existing Government. But should the amending power fail to work, the constituent power may emerge at the critical point. (See Carl, J. Friedrich, "Constitutional Government and Democracy"
58. (1950). The proposition that an unlimited amending authority cannot make any basic change and that the basic change can be made only by a revolution is something extra-legal that no Court can countenance it. In other words, speaking in conventional phraseology, the real sovereign, the hundred per cent. Sovereign the people can frame a Constitution, but that sovereign can come into existence thereafter, unless otherwise provided, only by revolution. It exhausts itself by creation of minor and lesser sovereigns who can give any command. The hundred per cent. Sovereign is established only by revolution, and he can come into being again only by another revolution (See Max Radin, "Intermittent Sovereign" (39 Y L J 514). As Wheare clearly puts it, on the Constitution is enacted, even when it has been submitted to the people for approval, it binds thereafter, not only the institutions which it establishes, but also the people themselves. They may amend the Constitu--tion, if at all, only by the method which the Constitution itself provides (See Wheare, "Modern Constitutions" X1966), p 62). This is illustrated also in the case of the sovereign power of the people to make laws. When once a Constitution is framed and the power of legislation which appertains to the people is transferred or delegated to an organ constituted under the Constitu-- tion, the people cannot thereafter exercise the power. "The legal assumption that sovereignty is ultimately vested in the people affords no legal basis, for the direct exercise by the people of any sovereign power, whose direct exercise by them has not been expressly or impliedly reserved Thus the people possess the power of legislation directly only if their Constitution so provides" (See Rottschaefer on Constitutional Law (1939), p. 8).
59. Our Constitution makes no provision for direct exercise by the 'people' or any sovereign power much less ordinary law making. Sovereignty, as declared in the Preamble to the Constitution, belongs to Almighty Allah alone. It is further clarified that "the State shall exercise its powers and authority through the chosen representatives of the people". In the end the Preamble is to the effect that 'we give to ourselves this Constitution' 'through our chosen representatives in the National Assembly'. There is, therefore, a clear statement in the Preamble to the Constitution itself that sovereignty belongs to Allah alone, and the Constitution was given by the 'people' through their chosen representatives in the National Assembly. On these facts, therefore, I am unable to hold anything to the contrary.
60. So far as the actual facts are concerned, the position is that the present Constitution is our seventh Constitution since Independence. I need not travel much in the past history, for, our Supreme Court in State v. Zia-ur--Rehman, upheld the Interim Constitution of 1972 as a Valid Constitu--tional Document, enacted by a competent body. The contention was raised before the Supreme Court that the National Assembly, as at present constituted, had no authority to frame a Constitution for Pakistan. Their Lordships repelled this contention as being "without substance" in these words : "After the abrogation of the Constitution of 1962 and establishment of Military Rule, the Legal Framework Order was clearly an endeavour to restore the principles of democracy whereunder the State was to exercise its powers and authority through the chosen representatives of the people and frame a Constitution for the State of Pakistan wherein the Muslims shall be enabled to Order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah, as envisaged by the Objectives Resolution itself. This was clearly, therefore, a step towards achieving the goals set out in the Objectives Resolution and for making provisions for the Orderly and the ordinary running of the Government of the country through the chosen representatives of the people. If there was any act of the usurper which could be condoned on the basis of the doctrine of necessity, then this was pre-eminently such an act. This was the first time that the representatives of the people had been chosen in the country by free and fair elections on the basis of adult franchise. The credentials of the people so elected were not therefore, open, to challenge on any principle 'of democracy, and since they had been elected under the Legal Framework Order, they had also been given a mandate by the people to make provision for the Constitution of Pakistan.
61. 'It all the 313 elected members had met and passed a Constitution of Pakistan, would any one have been in a position to challenge the validity of such a Constitution? I think not. The question then arises as to whether the fact that 160 male and 7 female members could not or to the validity of the Constitution unanimously adopted by it. If the majority of the members had been forcibly prevented or other--wise wrongfully excluded from participating in its proceedings, there may have been some scope for contending that Constitution produced was not a valid document. In the absence, however, of any evidence to show that anyone was so prevented, excluded or prohibited from attending the meeting of the National Assembly convened for the purpose of framing the Constitution, it cannot be said that the meeting of the National Assembly, which mustered the necessary quorum, required by Article 17 of the Legal Framework Order, and adopted a Constitution, was lacking in competence or was not a legally constituted body or that its acts were open to challenge on the ground that the majority of the members of the House were not present. Unless, of course, a special majority had been provided for the enactment of a Constitution and that majority was not present 1 no such objection can be validly raised. In the absence of any provision to that effect either in the Legal Framework Order or any other document the Interim Constitution adopted unanimously, by all the members present and voting in the House was validly and competently made. It cannot be invalidated merely on the ground that a large number of members were not present or did not participate.
62. The contention that the National Assembly, as at present constituted, had no authority to frame a Constitution for Pakistan, is also without any substance. This was the first purpose for which it was elected. It could perform other functions as a Legislature only after it had framed a Constitution and if it has framed a Constitution, it has performed its first function in accordance with the mandate given to it by the people. It is not for the Courts to question the mandate of the people."
63. The "mandate of the people" was exercised through the ;chosen represen--tatives and not by the 'people' was themselves. This should, therefore, suffice to conclude this aspect of Mr. Brohi's argument.
64. The next contention that may now be examined is whether any inherent limitation is to be construed by the fact ,of tripartite form of Government envisaged in the Constitution on the power of amendment of the Cons--titution contained in Part XI. This Part consists of two Articles and it reads as follows : PART XI AMENDMENT OF CONSTITUTION
238. Amendment of Constitution.-Subject to this Part, the Constitution may be amended by Act of Parliament.
239. Constitution amendment Bill.-(1) A Bill to amend the Constitution shall originate in the National Assembly and when the Bill has been passed by the votes of not less than two-thirds of the total membership of the Assembly it shall be transmitted to the Senate.
(2) If the Bill is passed by the Senate by a majority of the total membership of the Senate it shall be presented to the President for assent.
(3) If the Bill is passed by the Senate with amendments, it shall be reconsidered by the National Assembly ; and if the Bill as amended by the Senate is passed by the Assembly by the votes of not less than two. Thirds of the total membership of tale Assembly, it shall be presented to the President for assent.
(4) If the Bill is not passed by the Senate within ninety days from the day of its receipt the Bill shall be deemed to have been rejected by the Senate.
(5) The President shall assent to the Bill within seven days of the presen--tation of the Bill to him, and if he tails to do so he shall be deemed to have assented thereto at the expiration of that period.
(6) When the President has assented to or is deemed to have assented to the Bill, the Bill shall become Act of Parliament and the Constitution shall stand amended in accordance with the terms thereof.
(7) A Bill to amend the Constitution which would have the effect of altering the limits of a Province shall not be passed by the National Assembly unless it has been approved by a resolution of the Provincial Assembly of that Province passed by the votes of not less than two--thirds of the total membership of that Assembly.
65. Mr. Brohi's submission that Preamble to the Constitution would operate as an implied limitation on the power of amendment in that it sets out the great objective of the 'people' in establishing the State, "wherein the principles of Democracy, Freedom, Equality, Tolerance and Social Justice, as enunciated by Islam shall be fully observed", and "wherein Equality of Status, of Opportunity and before Law, Social, Economic and Political Justice, and Freedom of Thought. Expression, Belief, Faith, Worship and Associa--tion, subject to law and public morality shall be guaranteed", and further that "the Independence of the Judiciary shall be fully secured". He argued that it is not open to the succeeding generation to amend the provisions of the Constitution as to radically alter or modify the basic features of that form of Government or the objectives of the 'people' in establishing the Constitution.
66. A Preamble, as Dr. Wynes said, represents, at the most, only an intention which an Act seeks to effect and it is a recital of the present intention (See Wynes, "Legislation Executive and Judicial Powers in Australia (4th Edition 506). Story views the function of the Preamble as being key to open the mind of the makers as to the mischief which are to be remedied and objects which are to be accomplished by the provisions of an Act or Consti--tution. There is, however, no need to cite any case law, for, our own Supreme Court has laid down in State v. Zia-ur-Rehman that Preamble can- - not have the same status or authority as the operative part of the Constitution itself, unless it is incorporated therein and included in it its substantive part. The purpose of a Preamble, however, is that in case of any doubt as to the intention of the Law Makers it may be looked at in Order to ascertain a true meaning of a particular provision but cannot control the substantive provisions of the enactment.
67. The broad concept of justice, social, economic and political, equality and liberty thrown large upon the canvass of the Preamble as eternal and varieties are mere moral adjurations with only that content which each generation must pour into them, anew, to the light of its own experience. Hans Kelson says 'in General Theory of Law and State, (1946) p. 18, that justice is an irrational ideal, and regarded from the point of rational cognition, he think there are only interests, and hence conflicts of interest Their solution, according to him, can be brought about by an Order that satisfies one interest at the expense of the other, or seeks to achieve a compromise between opposing interests.
68. Allen remarked (in 'Aspects o! Justice', p. 31) "the term 'social justice' has no definite content, that it means different things to different persons.
69. Of liberty, Abraham Lincon has said, world has never given definition of it. The concept of equality appears to many to be myth and they say that if the concept is to have any meaning in the social and economic sphere, the State must discriminate in Order to make man equal who are, otherwise unequal.
70. However, as said by Lord Reid in Ridge v. Baldwin (1964 A C 40), "it does not follow that because these concepts have no definite contours, they do not exist, fort it is a perennial fallacy to think that because something cannot be cut and died, or nicely weighed or measured therefore it does not exist".
71. In the end, I am tempted to say that for a country struggling to build u a social Order for freeing its teeming millions from the yoke of poverty and destitution, the Preamble cannot afford any clue as to the priority value of these concepts inter se. In same context Justice Johnson in Anderson v.
72. Dunn (204 U S 1821), called the 'Science of Government' at the 'Science of experiment'.
73. And for making the experiment for building up the social Order which the dominant opinion of the Community desires, these Delphic Concepts can offer no-solution. They offer no guide in what proportion should each of them contribute, or which of them should suffer subordination or enjoy dominance in that social Order. How then can one of them operate as implied ;'limitation upon the power of amendment when the object of the amendment is to give priority value to the other of others.
74. I may now revert to the meaning that is to be given to the word 'amend--ment' in Part IX of the Constitution.
75. In Oxford English Dictionary the meaning of the word 'Amend' is 'to make professed improvements (in a measure before Parliament) ; formally to alter in detail, though practically it may be to alter its principle so as to athwart it".
76. McConny (in 'Columbia Law Review, Volume 20') has said that Amend contains in it an element of euphemism or conceit in the proposer an assump--tion that the proposal is an improvement.
77. Beyond this euphemistic tinge, .Amendment is applied to alteration of laws according to dictionaries means 'alter' or 'change'.
78. The Supreme Court of United States in Rode Island v. Falmer (253 U S 360), overruled the argument that an amendment under Article V of the United States Constitution must be confined in its scope to an alteration or im--provement from that which is already contained in the Constitution and can change its basic features.
79. The basic principles of construction were definitely enunciated by the Privy Council in The Queen v.
80. Burrah ((1878) 3 A C 889) and those principles were accepted and applied by Eal Loreburn in Attorney-General for Ontario v. Attorney-- General for Canada (1912 A C 571). Lord Selborne said in the former case that the .Question whether the prescribed limits of a power have been exceeded has to be decided by looking to the terms of the instrument by which, affirmatively ,the power was created,. And by which, negatively, it is restricted, and that if what has been done is within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited, it is not for any Court of justice to inquire further, or to enlarge constructively those conditions and restrictions. In other words, in interpreting a Constitution, as Lord Lorebun said in the latter case, if the text is explicit, the text is conclusive, alike in what it directs and what it prohibits.
81. In In re : The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, etc. (AIR1939FCI) Sir Maurice Gwyre said that a broad and liberal spirit should inspire those whose duty it is to interpret a constitution, that a Court should avoid a narrow and pedantic approach and that when a power is granted without any restriction, it can be qualified only by some express provision or by the scheme of the instrument.
82. Although the word 'amendment' may have a variety of meanings, we have to ascribe to it in an Article of the Constitution a meaning which is appropriate to the function to be played by it in an instrument apparently intended to endure for ages to come and to meet the various crises to which the body politic will be subject. The nature of that instrument demand awareness of certain presupposition. The Constitution has no doubt its roots in the past, but was designed primarily for the unknown future. The reach o this consideration was indicated by Justice Holmes in Missouri v.
83. Holland (252US416) which will always remain fresh. This is what he has observed " . . When we are dealing with words that also are a constituent Act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters . . . . . . "
84. Mr. A. K. Brohi, even for the purpose of the arguments advanced by h' very rightly said that a written Constitution must contain, as our own Constitution does, a provision for its own amendment for the dynamic pro of change so as to adjust and cater for future changes.
85. Mr. Justice Frankfurter, in this behalf, has remarked in Mr. Justice Homes and the Supreme Court (1938) at p. 75 as follows : "'Every legal system for a living Society, even when embodied in a written Constitution', itself be alive. It is not merely the imprisonment of the part, it is also the unfolding of the future. Of all the laws in Ordering the political life of a Nation, the Federal system is the most complicated and sudden. It demands most flexible and imaginative adjustment for harmonising the legal system.
86. The Constitution of the United States is not a printed finality but a dynamic process. Its application to actualities of Government is not a mechanical exercise but the function of a Statecraft."
87. Hall J. Fredreich (in "Constitutional Government and Democracy" at p. 135) says "Every well drawn Constitution, therefore, provides for its own amendments in such a way as to forestall as is humanly possible all revolutionary upheavals".
88. Another circumstance which must not be lost sight of is that no genera--tion has monopoly of wisdom nor has any generation a right to place fetters on future generations to mold the machinery of Government and the laws according to their requirements. Although a guideline for the organization and functioning of the future Government may be laid down and although norm may also be described for legislative activity, neither the guideline should be so rigid nor the norm so inflexible and unalterable as should rather than they be incapable of change, alteration and replacement even though the future generations want to change, alter or replace them. The guidelines andnorm would, in such an event, be looked upon as fetter and shackles upon the free exercise of sovereign will of the people in times to come and would be done away with by method other than constitutional. It would be nothing short of a presumptuous and vain act, if one generation distrus the wisdom and good sense of the future generations and to treat them in way as if the generations to come would not be sui juris. The grant o power of amendment is based upon the assumption that as in other human affairs so in Constitution, there are no absolutes, and that human minds can never reconcile itself to fetters, in its quest for a better Order of things. W. J.
89. Garner in "Political Science and Government" at pages 537-538 said that "what is true of transcendental philosophy is equally true in mundane sphere of a constitutional provision. An unamendable Constitution, accord--ing to Mulford, is the worst tyranny of time, or rather the very tyranny, of time. It makes an earthly providence of a convention which was adjourn--ed without delay. It places the sceptre over a free people in the hands of dead men and the only office left to the people is to build thrones out of the stones of their spulchres.
90. Each generation, according to Jefferson, should be considered as distinct nation with a right by the will of the majority to bind themselves but none to bind the succeeding generation, more than the inhabitant of another country. The earth belongs in usufruct to the living, the deads have neither to power nor the right over it.
91. If then, it is permissible under Article 239 to amend the Constitution, the question then is whether there are any implied restrictions that can be spelled out from the Constitution itself.
92. It would be at once noticed that the provisions for amendment of the Constitution has been incorporated in a separately enacted Part of Constitution exclusively reserved for this purpose, under the beading "Amendment o Constitution". This Part consists of only two Articles 238 and 239, whereas the former takes care of the exclusiveness from any other mode by which the power contained in this Part can be exercised, the latter Article provides for the manner in which Act of Parliament to amend the Constitution is to be passed and its patent effect, namely, that "the Constitution shall stand amended in accordance with the term thereof".
93. It is in this basic distinction that an Act of Parliament passed in exercise of the powers contained in Part XI of the Constitution that it differs from any other Act of Parliament which is passed in exercise of powers to enact law on the topics ennumerated in the legislative lists contained in the Fourth Schedule of the Constitution or embodied specifically in certain provision of the Constitution. It is also by this basic distinction that difference lies between constitutional law and ordinary law. An ordinary law, when questioned must be justified by reference to the higher law i. e. The Con-- stitution; but in the case of a Constitution, its validity is, generally speaking, inherent and lies within itself. Hans Kelson says "in General Theory of Law and state, that the basic norm (the Constitution) is not created in a legal procedure by a law creating organ. It is not-as a positive legal norm is- valid because it is created in a certain way by a legal Act, but it is valid because it is pre-supposed to be valid; without this per-supposition no human Act could be interpreted legally, specially as a norm creating Act.
94. Once it is realised that a Constitution differs from law, in that Constitution is always valid, whereas the law is valid only if it is in conformity with the Constitution and that body which makes the ordinary lace is not sovereign, but it derives its power from the Constitution; it becomes obvious that an amendment to the Constitution has some validity as the Constitution itself, although the question whether the amendment has been made in the manner and form and even the power conferred by the Constitution is always justiciable. Just as an ordinary law derives its validity from its conformity with the Constitution, so also an amendment of the Constitution derives its validity from the Constitution.
95. When a legislative body is also the sovereign Constitution-making body, naturally the distinction in the Constitution and an ordinary law becomes conceptual. And in fact disappears, as the body has both the Constituent power of the sovereign as well as the legislative power. If, therefore, the power to amend is to be found within Part XI and not the other parts of the Constitution, as the fact really is then it stands to reason to hold that constituent power of amendment of the Constitution is distinct from a legislative power.
96. The distinction between legislative power and constituent power is vital in a rigid or controlled Constitution, because it is that distinction which S brings in the doctrine that a law ultra vires of the Constitution is void, since the Constitution, a touch-stone or validity and no provision of the Consti- -tution can be ultra vices.
97. In the distinction contained in Article 239 that "the Bill shall become the Act of the Parliament and the Constitution shall stand amended in accordance with the terms thereof", therefore, lies the vital distinction which makes that Act of Parliament different from any other Act of Parliament passed in exercise of powers contained in the rest portion of the Constitution. The distinction lies in the criterion of validity. The validity of an ordinary law, as said earlier, can be questioned and when questioned, it must be justified by reference to a higher law. The Legislatures constituted under each Constitution have the power to connect laws under the Authority granted by the Constitution in parts other than Part XI. The power to connect laws carries with it the power to amend or repeal them. But these powers of Legislature do not include any power to amend the Constitution.
98. When Parliament is engaged in the amending process of the Constitution, it is not legislating. It is exercising a particular Part which is sui generis. Thus an amendment of the Constitution under Article 239 is Constituent law, and not an ordinary legislative product. Therefore, a power to amend the ,Constitution is different from the power to amend ordinary law.
99. As soon as an amendment is made in the Constitution by virtue of the power exercised by the Parliament under Part XI of the Constitution, the amendment prevails over the Article or Articles amended. The nature of this power itself, therefore, connotes that it is the "Constituent power", a definite formal process by which the Constitution is amended.
100. The question that may now be considered is whether the amendment in Article 199 of the Constitution amounts to the destruction of judicial power as has been asserted by Mr. Brohi.
101. The contention proceeds on the assumption that if interim Order is not passed as a measure of protection against the Order or action challenged on an application under Article 199, and as a consequence the property in question is auctioned or disposed of, no effective relief can ever be given to the petitioner. It is pleaded that the position in case of a person who is deprived of his liberty would also be the same.
102. Frankly speaking, I am unable to appreciate this argument. The embargo placed by clause 14-A) is on the time period for which an interim Order in respect to the categories of cases specified therein is to remain in force. Clause (4-A) does not place a total or complete ban. It is left open to the High Court to finally dispose of the controversies brought before it on an application under Article 199 in cases covered by clause (4-A) within a period of 60 days, for the power to make the final Order has no been touched at all. The complaint, therefore, really is that due to over--load of cases in the High Courts in Pakistan it is most unlikely that sue -cases would be finally disposed of as the experience tells us, and by laps .Of interim Order after 60 days the remedy would be lost.
103. It is true that due to overload of the cases in the High Courts litigants -do not expect prompt disposal of their cases but laws delays are only proverbial. That however, is beside the point, for, we are dealing with Constitutional issued. Since it is open to the High Court to pass the final Order within the period of 60 days, the difficulty pointed out is regarding the disposal of the disputes within the period prescribed. Unless the peti--tioner is himself to be blamed, the complaint in regard to the delay in the disposal of the dispute would either lie on the High Court or the opposite party. High Court is not powerless to pass ex paste Orders or such other Orders in accordance with law if opposite-party be the defaulter. As regards the delay on the part of the High Court, I cannot conceive of lethargy or p blame on its part to do justice in an appropriate case deserving disposal within 60 days. These are, however, not the aspects on which vices of a statute, not to speak of a constitutional provision, depends.
104. There is, however no gainsaying that practical difficulties have been created for the High Courts to be able to finally dispose of the cases of the categories which fall within the ambit of clause (4-A) within the period of 60 days, but x am unable to hold that by this the power of the High Court ,has been completely destroyed or annihilated.
105. This is, however, not to say that the jurisdiction vested in the High Court -is not subject to curtailment by the process of amendment under Article 239 of the Constitution.
106. Let me now revert to the first point raised by Mr. Brohi as to the interpretation of the language of the newly-added clause (4-A). The question is whether the embargo of time contained therein is relatable only to what -is called `ex parte interim Order', and not the one passed after fulfilment of the requirements of clause (4).
107. For this argument, the power of High Court to pass an interim Order pending final adjudication of an application for relief under Article 199 of Constitution, was neither doubted, nor is open to doubt, for, thepower vested in the High Court to pass the final Order, in the absence of specific exclusion in that behalf is deemed to include the power to pass an interim W Order; this position is on the contrary fortified by the provisions of clauses (3-A), (4) and (4-A) which require certain circumstances to be taken into consideration in the specified categories of cases before the power is exer--cised .
108. It is to be noticed that clause (4-A) has been added, as a separate clause, after clause (4) of Article i99, and it imposes restriction on the life an interim Order made on an application under Article 199 which questions, Orders or actions falling in certain categories of cases specified therein.
109. The emphasis of the argument of Mr. Brohi for confining the effect of clause (4-A) is that it is not to be assumed that the Makers of the Constitutional Amendment would place wholly arbitrary or unreasonable restriction .On the power already granted by the Constitution to the High Court, and that an embargo, which seeks to curtail High Court's jurisdiction, is to be strictly construed. He pleaded in this behalf that it would be absurd to assume that the Legislature intended that an interim Order made by a High Court, after recording a finding, for example, that making thereof would not be impeding the assessme nt or collection of revenue, should still, for no fault of the aggrieved person, lapse after 60 days.
110. The argument advanced is, no doubt, attractive but it is to be examined in the light of the cardinal principle of constitutional interpretation that if the language is clear, the Courts are to give effect to it even if it amounts t+ ouster of their own jurisdiction.
111. 'Interim Order' has not been defined by the Constitution.
112. The Oxford English Dictionary defines the word "Interim" to mean "in the meantime, meanwhile".
113. Black's Law Dictionary, 4th Edition, defines "Interim Order" as "one made in the meantime"; "until something is done".
114. B. J. Byrne in "Dictionary of English Law" defines "Interim Order" as "Interim Order" as "an Order as to the meantime; an Order which is of effect for a limited". He has given the illustration that under Order L, rule 1, the Court may make an Order for the preservation or interim custody by the subject- matter.
115. "Dictionary of English Law", by Earl Jowitt, defines, "interim Order" as "an Order as to meantime; an Order which is of effect for a limited period".
116. In "Words and Phrases", by John B.,Sunders, the word 'Interim' has been explained as follows: "What does the word 'interim' mean? Counsel for the applicant has said that it is only a classical way of saying 'temporary'. That may be true. I suppose it is another way of saying "for the time being". Alar v. Middlesex County Counsel (1945) 2 All E R 243, per Cassels, J., at p. 246.
117. In my view the word 'interim' means nothing more than 'for the time', 'in the meantime'; that is all it means. I asked the question in the course of the arguments : Is the dividend which is declared to be ''an interim dividend any less a dividend? It cannot be recalled afterwards. A very much better illustration was at once afforded by counsel for the applicant, who said: Can an injunction which is granted by the Court be said to be not an injunction because it is only an interim injunction? The answer surely must be that it is an injunction, and just as much an injunction as a permanent injunction with this qualification, that it is to last only for a certain time, but otherwise it is just as effective as is, in truth an in fact and in law, an injunction. I think the word 'interim', as part of the description of an appointment, does not qualify the position of the appointee in any way whatever except as regards the limit of time for which he is appointed."
118. Since by its very nature an 'ad interim Order" or an "Ex parte interim Order", as an 'interim Order', it is difficult to give 'interim Order' appearing in clause (4-A) a restricted meaning unless there be any in the language of this clause or the context in which it appears which may compel us to do so. Y There is nothing in the language of clause (4-A) to compel a restricted meaning to be given to it. It is, however, argued that in the context in which clause (4-A) has been introduced an interim Order made under clause (4) is not covered by the embargo placed on an interim Order specified in.
119. Clause (4-A). In this behalf the several arguments of Mr. Brohi has already been mentioned. These have reference to clause (4) which restricts to power of High Court to make an interim Order in respect of the categories of thus cases mentioned therein. It is submitted that it is too absurd to imagine that an interim Order made by High Court after fulfilment of the conditions imposed by clause (4) I.e. High Court having given a finding that the interim Order has no effect of prejudicing or interfering with the carrying out of a public work or otherwise being harmful to the public interest or being impediment to the collection or assessment of the public revenue or that it would have the effect of suspending an Order or proceeding which, on the face of the record, is without jurisdiction, should be made further subject to the restrictions imposed by clause (4-A) as to the limitation of time for which it is to remain in force. If that were to be so, it was argued, that the provisions of clause (4-A) would have been inserted as the integral part of clause (4).
120. I have already observed that clause (4-A) has been added as a separate clause. It has been inserted after clause (4). The categories of the interim Orders mentioned in these two clauses are not absolutely identical, although some do overlap. According to one of the basic rule of interpretation, the expression 'interim Order' contained in the preceding clause should bear the same meaning as in the clause that follows, unless of course, there appears anything to the contrary by express words or by necessary intendment in the language of the subsequent clause.
121. There is nothing to suggest anything o the kind in clause (4-A) to the effect that an interim Order made by a High Court after taking into consideration the condition and the limitations imposed by clause (4) are not covered by the language employed therein. All the arguments addressed by Mr. Brohi tantamount to the grounds of hardship, but these can be no grounds for avoidance of law if the meaning) of the words employed by law is very clear. I am conscious that the provisions which adversely affects the jurisdiction of the superior Court are to be construed strictly, leaning against the ouster of jurisdiction, but I see no ground either in the language or anything in the surrounding circumstances, from which restricted meaning can be given to the expression 'interim Order' appearing is clause (4-A) than the one mentioned in clause (4). An interim Order of the category specified in clause (4-A) cannot, therefore, be given a restricted meaning so as to exclude it from the categories of the interim Orders made by the High Court under clause (4). By this interpreta-- tion being given to the interim Orders mentioned In these two clauses, no A doubt the jurisdiction of the High Court shall stand affected. But I feel's myself compelled to do so in view of the language of the expression being very clear, and I am duty-bound to give effect. To it, even if ouster of jurisdiction of the High Court is caused thereby.
122. I am, therefore, of the view that the language of clause (4-A) of Article 199 of the Constitution cannot be construed in the manner so as to exclude an interim Order made by the High Court after compliance with the conditions imposed by clause (4) of that Article.
123. The next question which my be considered again relatable to the interpretation of clause (4-A) is whether the word 'purports' is also relatable to the second category of cases, namely, those relating to or connected which the assessment and collection of public revenue.
124. It would be useful if this clause is reproduced again even if it means repetition. It reads: "(4-A) An interim Order made by a High Court on an application made to it to question the validity or legal effect of any Order made proceeding taken or act done by any authority or person, which has --been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule: or relates to, or is connected with, assessment or collection of public revenues shall cease to have effect on the expirations of a period of sixty days following the day on which it is made, unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier."
125. This clause, it is obvious relates to two categories of cases; those in which Orders challenged pertain to laws specified in Part I of the First Schedule, and those relating to or connected with the assessm ent or collection of public revenue. The difference which is, however, to be appreciated for the purpose , of arguments advanced is that whereas in the first category the acts done by an Authority is protected, whether it has been done under the law or purports to have been done under the law; in the second category, however, the word 'purports', being significant by its absence, distinction must be drawn between the two categories of cases.
126. The distinction, according to Mr. Brohi, is set up for the reasons that B the laws specified in Part I of the First Schedule are laws which enjoy a special Constitution status in that they are protected and are exempt from the challenge on the ground of the infringement of Fundamental Rights with reference to Article 8 of the Constitution. The laws relating to assess--ment or collection of public revenues, on the other hand, do not enjoy any such protection; indeed no tax can not be levied except by or under the authority of an Act of Parliament. The right to levy taxes being thus strictly confined in terms of the express language of the Statute which empowers the levy of the tax, the purported exercise of the power to tax must not be treated in the same category as laws specified in Part I of the First Schedule.
127. Mr. Brohi pointed out three basic reasons why laws relating to assessment ' or collection of public revenues should not be treated in the same category as laws specified in Part I of the First Schedule: Firstly, laws specified in Part I of the First Schedule are laws which relate to or introduce basic, social or economic reforms and enjoy a supra-Constitutional position in the sense that they are exempt from the operation of that entire Chapter of the Constitution which relates to the enforcement of fundamental rights; Secondly, actions of the State relating to the assessment or collection of public revenues are unlike other administrative actions since they require the sanction of a law in every case; and Thirdly, fiscal Acts are always subject to the rule of strict construction.
128. According to Mr. Brohi, the interpretation to be placed on the language of clause (4-A) should bear the following formulation: "(4-A) An interim Order made by a High Court on an application made to it to question the validity or legal effect of any Order made, proceed--ings taken or act done by any Authority or person which has been made, taken or done or purports to have been made,. Taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, assessment or collection of public revenues, stall cease to have effect on the expiration of a period of 60 days following the day on which it is made, unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier.
129. Mr. Brohi, submitted the formulation put forward on behalf of the respondents which seeks to apply the phrase "purports to have been made, taken or done" to "assessment or collection of public revenues" is fallacious for the following reasons:
(a) It takes no account of the three reasons which have been submitted in the above which distinguish laws specified in Part I of the First Schedule from laws relating to the assessment or collection of public revenues.
(b) It seeks to qualify the word "law" with the phrase "relates to or is connected with assessment or collection of public revenues". However, it would be inapt to say that a law relates to assessment or collection of public revenues. In fact assessment or collection of public revenues takes place under the law. To apply the word "relates." in this context is virtually to place the concept of law and the concept of assessm ent or collection of public revenues on the same plane, whereas the concept of law falls in a higher plane.
(c) if the respondent's interpretation was correct, there ought to have been a comma after the word 'law' since the said word would now be qualified by the following two adjectival phrases : (i) "which is specified in Part I of the First Schedule" and (#') which "relates to or is connected with assessm ent or collection of public revenues".
130. The emphasis of the arguments, as would be noticed therefrom, is on the omission of the word 'purports' after the specification of the first category of Orders; the argument, in other words, is that it was necessary that the word 'purports' ought to have been included in relation to cases wherein assessm ent or collection of public revenue is involved so as to be affected by clause (4-A).
131. Reading of clause (4-A) shows that great care has been taken by the makers of the Constitution Amendment to cover the cases wherein validity or legal effect of an Order made, proceeding taken or act done, is challenged on an application under Article 199 of the Constitution and an interim Order has been made by the High Court. In the first category, an Order 'purportedly' made under the law specified in Part I of the Schedule is also covered. Now --unless the word 'purport' is held to have connection in view of the language used in clause (4-A), with the second category of cases, that word should have been used for the second time, in relation to the second category of cases if that was intended to be affected, and the argument of Mr. Brohi must prevail. In this connection the well-established principle of interpreta--tion is to be noticed that the provisions seeking to oust the jurisdiction of the superior Courts are to be strictly construed with pronounced leaning against ouster of jurisdiction. From the language used in clause (4-A) it is obvious that the word 'purports' so far as the second category of cases is concerned has not been mentioned, but the question is whether the mention of this word is necessary, once that it has already been used, so as to cove the interim Orders pertaining to the second category. The word 'purport' has acquired special significance after the decisions of the Supreme Court of Pakistan in Zia-ur-Rahman's case and Seed Ahmed's case. The mention of the word 'purports' in clause (4-A) is not, therefore, without important significance. In this behalf, the construction of the language of clauses (4-A)[ which Mr. Brohi seeks to place has already been reproduced earlier. The -formulation of this clause made by learned Attorney-General is as follows: "(4) An interim Order made by a High Court an application made to it to question the validity or legal effect of any Order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which
(or) relates to, or is connected with. Assessment or collection of public revenues shall cease to have effect on the expiration of a period of sixty days following the day on which it is made, unless the case is finally decided, or the interim Order is withdrawn by the Court earlier.
132. An interim Order made by a High Court on an application made to it to question the validity or legal effect of any Order made, proceeding taken or act done by any authority or person, which had been made, taken or done or purports to have been made, taken or done under ,any law which is specified in Part I of the First Schedule ( ...............Shall cease to have effect on the expiration off period of sixty days following the day on which is made unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier."
133. Obviously what is sought to be connected is the phrase "purports to have been made, taken or done" with the phrase "assessm ent or collection of public revenues". The word 'or' has been missed in the formulation made by learned Attorney-General and I have to rule it as redundant, I am to accept learned Attorney-General's argument.
134. Apart from the very convincing reasons of Mr. Brohi, which bear no repetition, and keeping in view the mischief that the provisions of clause (4-A) seek to play in extracting life-breach out of an Order passed by superior Courts, and the provisions such as these are, therefore, to be very strictly construed, and in case of two equally possible meanings, one that favours the 'Citizen' i. e. Not the 'Governor', but the 'Governed', is to be given, I am clear in my mind that the formulation of clause (4-A) made by Mr. Brohi is the only harmonious meaning that can be given to the language of clause (4-A). The other formulation made here under equally fit in with Mr. Brohi's argument :- "(4-A).-An interim Order made by a High Court on an application made to it to question the validity or legal effect of any Order made, proceed--ing taken or act done by any authority or person which-
(a) has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule OR
(b) relate to, or is connected with, assessment or collection of public revenues, shall cease to have effect on the expiration of a period .. Of sixty days following the day on which it is made, unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier."
135. I, therefore, feel no hesitation in accepting the argument of Mr. Brohi that the phrase "purports to have been, taken or done" has no connection with the phrase "assessment or collection of public revenue".
136. It was, however, argued by learned Attorney-General that since the ques--tion whether the Order challenged before the High Court on an application under Article 199 of the Constitution is an Order made in exercise of powers conferred by law or purported exercise of law is to be determined by the final Order, and not by the interim Order, and it makes no difference if the word 'purports' has been omitted in relation to the second category of cases.
137. I have already remarked that the words "purports to have been made, taken or done" are not without important significance. I am, therefore, able to accept the argument that the omission of this phrase in relation to the second category of cases covered by clause (4-A) has no importance at all. What would be the result thereby is, however, to be judged in each individual case, on its own merits.
138. I have, therefore, no hesitation in accepting this part of the argument of Mr. Brohi. Since the effect of this omission is to be judged in each individual case on its own merits, it seems unnecessary to express any further in this regard.
139. The last point that now remains for consideration is whether section 14 of the Constitution (Fourth Amendment) Act, 1975 has effected any Constitu--tional Amendment. The argument rests on the language of the section with reference to clause (6) of Article 239 of the Constitution. It is, therefore, necessary to reproduce them hereunder :- "Section 14. Certain Orders shall cease to have effect after specified period.-An interim Order such as is referred to in clause (4-A) of Article 199 of the Constitution made by a High Court before the commencement of this Act shall cease to have effect at the expiration of sixty days from such commencement, unless the case is finally decided, or the interim Order is withdrawn, by the Court earlier.
140. 239 (6).-When the president has assented to or is deemed to have assented to the Bill, the Bill shall become Act or Parliament and the Constitu--tion shall stand amended in accordance with the terms thereof."
141. The argument turns round the fact that whereas 13 preceding sections of the Constitution (Fourth Amendment) Act, 1975 do in their own terms amend the relevant Articles of the Constitution, section 14 does not in its own lan--guage do so.
142. If this argument were to be accepted then we must also accept the argu--ment that unless each Section of the Constitutional Amendment Act in its own terms employed in the language contained therein directs an amend--ment, the provisions contained in the Constitution Amendment Act have no effect of amending the Constitution even if the Constitutional Amendment Bill becomes an Act of Parliament in the meaning of clause (6). This argu--ment must fail, for, it is axiomatic in the exercise of the Constitution power contained in Article 239 that in final result the provisions contained therein become an integral part of the Constitution. Section 14 of the Constitution (Fourth Amendment) Act, 1975 is a part of Constitution-Amending Instru--ment and the Constitution is to stand amended in accordance with the term contained therein.
143. In this connection what is to be noticed is the nature of action to be taken in terms of section 14 of the Constitution (Fourth Amendment) Act, 1975 in Order to bring about amendment in Constitution.
144. This section in its heading states that 'certain Orders shall cease to have effect after specified period ; and according to the language contained therein, an interim Order of the nature referred to in clause (4-A) of Article 199 made by a High Court shall cease to have effect after 60 days from the commencement of the Act. This provision, therefore, affects interim Orders passed by High Courts of the categories specified in clause (4-A) of the Constitution, and no actual amendment is intended to result in arty of the provisions contained in the Constitution itself. The effect, however, is on the interim Orders passed by High Court in exercise of powers conferred by the Constitution under Article 199. To that extent the power of the High Court has been affected, U Thus there being no amendment to be effected in any particular Article of the Constitution, it was not necessary to employ in the language used therein anything to the effect that it actually amends a particular provision of the Constitution. However, by its very nature Constitution (Fourth Amendment) Act, 1975 is an exercise of 'Constituent' power by the Parliament and it is not a product of ordinary legislation. The effect must, therefore, be given to section 14 of the Constitution (Fourth Amendment) Act, 1975 as if the Constitution has thereby been amended in the terms of that section to the effect that an interim Order such as is referred to in clause (4-A) of Article 199 of the Constitution made by a High Court before commencement of the Act shall cease to have effect offer 60 days of the commencement of the Act.
145. It was argued that the provisions of section 14 of the Constitution (Fourth Amendment) Act, 1975 do not affect the interim Orders passed by a High Court before the commencement of the present Constitution, for, the provisions of section -14 can at best affect the provisions of the present Constitution. This argument ignores the fact that the interim Orders M passed by a High Court as well as the High Court itself continues by virtue of the provisions contained in the Constitution, particularly in its Article 275. In any case, section 14 is to be read as a provision of the Constitution and effect is to be given to it accordingly.
146. In the end, I may mention an alternate argument that was canvassed at the Bar that it is permissible to the High Court to make a fresh interim Order i.e. a second interim Order, after an interim Order has lapsed as the result of the provisions contained in the newly added clause (4-A) of the Constitution. It was submitted that in the absence of express embargo or clear language to the effect That High Court shall not make an interim Order for a period more than 60 days, no limitation is to be spelled out so as to curtail the power of the superior Courts to make an interim Order in exercise of the power included in the power to make the final Order.
147. Howsoever much I may be tempted to accept this argument so as to retain the jurisdiction of the High Court, I feel I must reject it, In view of the clear language of clause (4-A) and the intention of the Makers of the Consti--tutional Amendment. Clause (4-A) bas been inserted to achieve the embargo contained therein on the interim Orders pertaining to the specified categories of cases, and it would amount to evading an express provision of the Constitution, if I were to accept the meaning sought to be given by Mr. Brohi on the language of clause (4-A) by which what the Constitution directs to 'cease to have effect' will be revived by indirect means. I have, therefore, no hesitation in rejecting this plea.
148. From the discussions above, I have reached the following conclusions :-
(i) Constitution (Fourth Amendment) Act, 1975 is not ultra vires of the Constitution so far as it amends its Article 199.
(ii) Section 14 of the Constitution (Fourth Amendment) Act, 1975 has amended the Constitution in the terms of the language contained therein that 'an interim Order such as is referred to in clause (4-A) of Article 199 of the Constitution made by a High Court before the commencement of that Act shall cease to have effect after 60 days, unless the case is finally decided or the interim Order is withdrawn by the Court earlier.'
(iii) An interim Order passed by the High Court in terms of clause (4) is included in clause (4-A) of Article 199 of the Constitution.
(iv) The words 'purports to have been made, taken or done' have no bearing to the second category of cases contained in clause (4-A), namely , those relating to or connected with assessm ent or collection of public revenues.
(v) After an interim Order ceases to have effect by virtue of embargo placed under clause (4-A) of Article 199 of the Constitution, it is not open to the High Court to make a second Order of that nature and to that effect.
149. I cannot, however, part with this case without paying tribute to Mr. A. K. Brohi, Mr. Yahya Bakhtiar, learned Attorney-General, Mr. S. J. Alam, Deputy Attorney-General, Mr. Ghulamally Memon, learned Advocate-Gene--ral, Sind and Mr. N. A. Faruqi, Advocate for their brilliant performance in assisting us in the complicated issues involved in this case.
150. MUHAMMAD HALEEM, J.-I concure with the judgment proposed to be delivered by my Lord, the Chief Justice.