' GUL MUHAMMAD KHAN, J.-This is an intra-Court appeal directed against the order dated 17th June 1975, passed by a learned Single Judge of this Court in Writ Petition No, 2306 of 1974, whereby two notifications issued by the Punjab Government on 2nd May 1974, and 3rd August 1974, published in the Punjab Gazette dated 13th September 1974, were found to be without lawful authority. In these two notifications the Government had declared that the Freemasons Society is an unlawful association and its premises, as mentioned therein, were being used for the purpose of unlawful association.
2. The Freemasons Society, which is represented by the respondents, as its office-bearers, came into existence as an Association in the Seventeenth Century. It established itself for the first time in 1858 in Delhi and Calcutta in the Subcontinent of India. It came to Lahore in 1873 and established itself at Lodge Road. Subsequently it purchased the property in dispute at the Mall on 27th June 1917.
3. After the establishment of Pakistan the activities of the Association have been the subject- matter of public criticism. The questions were also raised in the Parliament in 1969 but the Government defended its existence on the ground that the Constitution guaranteed religious freedom as a Fundamental Right and that the Organization was not Jewish. It was further stated by the Government that all the members of the Society in Pakistan were Muslims. The Society, it was stated, had philanthropic aims and no political activities of the Association had come to the notice of the Government. In September 1972, also the then Minister of Inferior refuted the allegations that the Society was carrying on subversive activities,
4. Despite the stand taken by the Government, the criticism mounted in the general public. On 22nd July 1972, the Punjab Assembly, for the first time, passed a Resolution recommending to the Central Government that a ban be imposed on the Freemasons and that their entire property be forfeited.
It appears that the Central Government again considered the matter seriously and directed the Provincial Government to impose a ban on this Organization.
5. On 7th August 1973, the Punjab Government (Home Department) issued a notice to the Minister/Secretary, Lodge of Hope and Preservance No, 782, Freemason Club, Lahore, to show cause why the Freemasons Association should not be banned under section 16 of the Criminal Law Amendment Act, 1908. It was stated that the Organization held secret meetings and was propagating beliefs which constituted a danger to the public peace.
6. The Society in its reply dated 20th August 1973, denied the allegations and pointed out that the Government in its notice had given no basis for its satisfaction. The Government, however, did not accept the position taken by the respondents and published simultaneously the two notifications, already referred to above, declaring the Association as unlawful and holding that the properties referred to therein were being used for the purpose of unlawful. Association of the Freemasons.
7. Meanwhile the property at the Mall, had been requisitioned on 6th October 1973 under rule 121 of the Defence of Pakistan Rules, 1971, and it was placed at the disposal of the Director, Relief and Rehabilitation Cabinet Division. The rent of the building was fixed at Rs, 1,000 p.m. The requisition order was, however, withdrawn on 16th October 1973.
8. A second requisition order was made on 22nd November 1973, under the Defence of Pakistan Rules and the building was placed at the disposal of the Deputy Inspector-General of Police, Lahore Range, Lahore, for the purpose of Islamic Summit. On 9th March 1974, one of the members addressed a letter to the Deputy Commissioner, Lahore, requesting for the de-requisition of property at the Mall, Lahore, on the ground that the requisitioning order had exhausted itself. The notification requisitioning the property, therefore, was withdrawn on 21st March 1974.
9. The premises in question were, however, not vacated by the Deputy Inspector-General of Police, despite the withdrawal of the requisitioning order. However, in response to another letter sent by the same member, the Deputy Inspector-General of Police, promised to vacate it after 5th April 1974. The promise was, however, not kept with the result that the said member wrote letters to the different authorities for delivery of vacant possession of the above premises. He wrote a letter to the Deputy Inspector-General of Police on 20th June 1974, as well as to the Deputy Commissioner on 7th August 1974. He wrote a similar letter to the Secretary (Home Department). There was no response to any of those letters. The Government, however, declared the Freemasons to be an unlawful association and took over its properties as stated in para. 6 above.
10. At the time when the two notifications were issued and the other actions referred to above taken, the Proclamation of Emergency issued under Article 232 of the Constitution was in force and the President had issued an order under Article 233 (1) empowering the Legislature to enact laws in violation of the Fundamental Rights Nos. 15, 16, 17, 18, 19 and 24. The right to move Court for enforcement of Fundamental Rights Nos. 10, 15, 16, 17, 18, 19, 23, 24, 25 and 27 had also been suspended under Article 233 (2).
11. There is no dispute about the validity of the Proclamation of Emergency and the orders of the President passed under Article 233. It is also an admitted fact that the order of the President passed under Article 233 (2) of the Constitution had been revoked on 14th August 1974, thus leaving the Courts free to enforce the Fundamental Rights.
12. The learned Single Judge came to the conclusion that the two notifications were void as they had been issued under those provisions of the Criminal Law Amendment Act, 1908, which had been declared void by the Supreme Court in Abul A'la Maudoodi's case (I) and that even the restriction against enforcement of Fundamental Rights had been removed in view of the revocation of the President's order under Article 233 (2) of the Constitution. In this view of the matter his Lordship did not think it necessary to go into the question if the respondent had exercised its discretion in accordance with the established norms in order to come to the conclusion that there was material justifying its action.
13. It was contended by the learned counsel for the appellants that the Criminal Law Amendment Act, 1908, having been passed by a competent Legislature, was an existing law and was continued in force under Article 268 of the 1973 Constitution though it passed into a state of hibernation immediately and became inoperative. It, however, became operative again after the Proclamation of Emergency was made in 1971. Reliance was placed on Manzoor Elahi's case (2), Federation of Pakistan v. United Sugar Mills Limited (3), The Province of East Pakistan v. Muhammad Mehdi All Khan (4) and The Tribunal (District Magistrate), Karachi v. Hashim (5). The precise argument made was that the word 'void' as used in Article 8 (1) does not amount to wiping off, effacing or obliterating a law from the Statute book ; it only paralyses it so as to render it ineffective and (1)PLD 1964 SC 673 (2) P D 1975 SC 66
(3) PLD 1977 SC 397 (4) PLD 1959 SC (Pak.) 387
(5) PLD 1960 SC 260 ' unenforceable till the Proclamation of Emergency is in force. According to him an existing law is only rendered inoperative upon the enforcement of the Fundamental Rights, but is revived and it starts operating as soon as the Fundamental Rights are suspended. When asked about certain observations of the Supreme Court in Mehdi All Khan's case, the learned counsel could not give a satisfactory reply. He, however, referred to the Tribunal v. Hashim to say that in a similar situation, the Supreme Court held the Frontier Crimes Regulations as an existing law and upheld the similar submissions as were being made by the learned counsel before us.
14. The learned counsel for the respondents relied on Article 8 of the Constitution and submitted that it specifically provides under clause (1), that all existing laws which are inconsistent with the Fundamental Rights are void to the extent of the inconsistency. The State has been prohibited under clause (2), it was submitted, from enacting any law in contravention of the Fundamental Rights guaranteed by the Constitution and any law so enacted shall be void to the extent of contravention. It was contended that the word 'void' according to various decisions of the Supreme Court, means something which does not exist in the eye of law. The effect of the entire Article 8, it was pleaded, is that the laws which existed before the enforcement of the Fundamental Rights and those made subsequently shall be void to the extent of their inconsistency with or contravention of Fundamental Rights. Consequently, none of such provisions would exist in the eye of law.
15. The learned counsel for the respondents also relied on some of the judgments referred to by the appellants. He submitted that as the President's order made under Article 233 (2) had already been revoked, the `existing laws' even on the basis of the arguments of the learned counsel for the appellants became void and so inoperative. The learned counsel mainly relied on the case of Abul Al'a Maudoodi, wherein similar notifications issued under the same provisions of law were declared to be without lawful authority by the Supreme Court.
16. One of the questions arising in the case in hand is whether an existing law which is void for being inconsistent with the Fundamental Rights becomes operative again on a Proclamation of Emergency being issued or it comes into operation only after the Fundamental Rights are totally destroyed or eliminated? The contention of the learned counsel for the appellants is that the laws declared void in view of their inconsistency with the Fundamental Rights revive and become operative as soon as the President proclaims Emergency and that it is done irrespective of an order under Article 233 (2) being there or not. The contention raised on behalf of the respondents was that there is nothing in Article 233 to bring into operation an existing law on the declaration of Emergency. According to the respondents, the State can only make new laws in contravention of the given Fundamental Rights mentioned in Article 233 (1) but cannot rely for its executive actions on the laws which are void under Article 8 (1) of the Constitution. In the alternative it was submitted that as the order of the President under Article 233 (2) had been revoked, the Court could declare the Criminal Law Amendment Act, 1908, and the two notifications thereunder as void.
17. The Constitution speaks of void laws in at least four of its provisions. Two provisions i,e, Articles 8
(1) and 8 (2) have been noted above. They give the extent to which a law repugnant to the Fundamental Rights shall be void. The third is Article 143 which provides that : "If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Parliament, whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
' Article 232 (4) states that "232.-(4) Nothing in this Article shall restrict the power of a Provincial. Assembly to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of Parliament which Parliament has under this Article power to make, the Act of Parliament, whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy, but so long only as the Act of Parliament continues to have effect, be void."
18. The question thus arises what does the Constitution mean by the word 'void'? According to Corpus Aids Secondum, Volume 16, Article 101, the view of the United States Supreme Court on the point is as under : "The general rule is that a statue declared unconstitutional is null and void as of the date of its enactment ; but the rule, in this form, has been held too broad, and to be subject to many exceptions and qualifications. Generally, the reversal or overruling of an adjudication of unconstitutionality validates the statute as of the date of enactment.
' Broadly, an unconstitutional statute is void at all times and its invalidity must be recognized or acknowledged for all purposes, and is no law, or not a law, or is utter nullity. Generally speaking a decision by a competent tribunal that a statute is unconstitutional has the effect of rendering such statute null and void the act, in legal contemplation, is as inoperative as though it had never been 'passed and it is regarded as invalid, or void, from the date of enactment, and not only from the date on which it is judicially declared unconstitutional.
' On the other hand, it has been held that this general rule is not always absolutely true, that a realistic approach has been eroding this doctrine, that such broad statement must be taken with qualifications, just prior to a determination of constitutionality, and may have consequences which cannot justly be ignored."
19. The various State Courts of the United States of America however, have gone a little further :- "So, it has been held that an unconstitutional statute is not void, but only voidable, or is unenforeable rather than void, or void in the sense that it is repealed or abolished, that a statute held unconstitutional remains inoperative as long as the decision holding it invalid is maintained, and that as long as the decision stands the statute is dormant but not dead."
' The view has been taken that if the decision that a statute is unconstitutional is subsequently reversed or overruled, the statute will ordinarily be treated as valid and effective from the date of its enactment, or from its first effective date, and does not require re-enactment by the Legislatuse in order to restore its operative force ; but under other authority a person cannot be held liable under a criminal statute for acts committed during the time that the judicial declaration of invalidity stood unreversed." (The views of two Courts have been separated by us).
20. The view of the United States Supreme Court as reported in American Jurisprudence, 2nd Edn., Vol. 16, section 177 is as under : "The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose ; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
' Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, affords no protection, and justifies no acts performed under it.
' No one is bound to obey an unconstitutional law and no Courts are bound to enforce it.
' A void act cannot be legally inconsistent with a valid one. And an unconstitutional law cannot operate to supersede an existing valid law.
21. Section 109 of the Australian Constitution provides for a situation where an Act of a federating State may be declared invalid for its inconsistency with an Act of the Commonwealth. Section 109 is as follows : "109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
The situation for the applicability of the above section came up for consideration in 1948 in Wenn v.
Attorney-General (Vic.) (1). It was held that sections 4, 7, 9 and 10 of the Discharged Servicemen's Preference Act, 1943 were inconsistent within the meaning of section 109 of the Constitution, with the provisions of Part II of Re-establishment and Employment Act, 1945 and were, therefore, invalid.
In 1959 it was decided in Illawarra District County Council v. Wickham (2) that Part II of the Re.
Establishment and Employment Act, the authority for the enactment of which was the defence power, could no longer be supported under that power. It was, therefore, held that on the expiry of the Commonwealth legislation the Victorian Discharged Servicemen's Preference Act, 1943 resumed the full force and effect it had had before the Commonwealth legislation came into force.
In Butter v. A. G. (Vic.) (3) Latham, C. J. Observed that : "The word `invalid' in section 109 of the Constitution cannot be interpreted as meaning that a State law which is affected by the section (1) (1948) 77 C L R 84 (2) (1959) 101 C L R 467 (3) 106 CLR268 becomes ultra vires in whole or in part. If the Commonwealth law were repealed, the State law would again become operative. Thus the word `invalid' should be interpreted as meaning Inoperative'."
22. In South Australia v. The Commonwealth (1) Latham, C. J. Observed : "Common expressions, such as `The Courts have declared a statute invalid', sometimes lead to misunderstanding. A particular law made in excess of power is not and never has been a law at all.
Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of a Court in his favour but such a decision is not an element which produces invalidity in any law. The law is not valid until a Court pronounces against it-and thereafter invalid. If it is beyond power it is invalid ab initio." *(It should be valid).
23. The position in Canada also appears to be that an Act which was ultra vires of the power of a Provincial Legislature being in conflict with the legislative power of the Parliament of Canada under section 91 of the British North America Act, 1867, was inoperative. The Privy Council rendered this opinion in Attorney-General for Alberta v. Attorney-General for Canada etc. (2). The position in Ireland as quoted by Syed Sharifuddin Pirzada at page 127 of his book 'Fundamental Rights and Constitutional Remedies in Pakistan', 1966 Edition, is as under : "The note in (1954) 17 M L R 248 deals with Ulster Transport Authority v. James Brown & Sons Ltd. 1953 N I 79, a decision of the Court of Appeal for Northern Ireland presided over by Lord Mac Dermott, Lord Chief Justice. Dealing with section 5 (1), the learned Lord Chief Justice says :- ' I am not aware of any authority for the view that language such as this necessarily means that contravention must produce an actual gap in the statute book in the sense that the measure concerned or some specific part thereof, simply drops out of the authorised text. As well as this vertical severability, if I may so describe it, I see no reason why, if the circumstances warrant such a course, the terms of section 5 (1) should not be sufficiently met by what I may call a horizontal severance, a severance that is, which, without excising any of the text, removes from its ambit some particular subject-matter, activity or application. This, I think, would give effect to the words `so far as it contravenes' without impinging on the meaning or weight to be attached to the word void'."
24. Article 13 of the Indian Constitution is worded similarly as Article 8 of our Constitution. It may, therefore, be of help to consider the way this provision has been interpreted there. Mukharjea, J. In Saghir Ahmad v. U. P. (3) held that a statute void for unconstitutionality is dead and cannot be vitalized by a subsequent amendment of the Constitution but must be re-enacted. He relied on Cooley, Constitutional Limitations, Vol. I, page 384 in support of his view. In Behram Khurshid Peri Kaka v. Bombay (4) the same Supreme Court
(1) (1942) 65 C L R 373 (2) (1943) A C 356
(3) AIR 1954 SC 728 (4) AIR 1955 SC 123 ' held that part of an existing law which is unconstitutional is not law and is null and void. Such law, it was observed, is to be notionally obliterated from the text for all intents and purposes though it may remain written on the statute book and be a good law for question arising before the promulgation of the Constitution. Mahajin, C. J. Also held that there was no distinction between a law void for violating a constitutional fetter or limitation on legislative power itself. According to him both represented two aspects of lack of legislative power. In Bhikaji Narain Dhakras v. M. P. (1) the Supreme Court ruled that the impugned unconstitutional existing law is eclipsed for the time being by the Fundamental Right but is revised as soon as the constitutional filter is removed. Relying on the American authorities, the Court held that though the post-constitution laws are still-born but that rule will not apply to India about existing laws, which were perfectly valid before the Constitution. The existing laws, it was ruled, would not be dead for all purposes but would exist for the pre-constitutional rights and liabilities and remain operative in future as against non-citizens who do not enjoy Fundamental Rights. As against citizens the position of the existing laws was stated to be dormant or moribund.
25. This state of law is parallel to the theory of eclipse which means that such a law is not a nullity or void ab initio but remains unenforceable. It also recognizes the distinction between a law void for legislative incompetence and a law void for violating Fundamental Rights. The whole question was again considered in M. P. V. Sundararmier v. A. P. (2). The view of the Court was : "Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation to give effect thereto
26. In L. Jagannath v. Authorised Officer (3) the Indian Supreme Court reconsidered this point and held as under : "In our view, although decisions of the American Supreme Court and the comments of well-known commentators like Willoughby and Cooley have great persuasive force, we need not interpret our Constitution by too much reliance on them. Nor is it necessary to scrutinise too closely the decisions wherein views appear to have been expressed that a law which is void under Article 13
(2) is to be treated as still-born. Equally unfruitful would it be to consider the doctrine of eclipse."
27. The controversy again came up for consideration in Gujrat v. Ambica Mills Ltd. (4). The Court ruled that where Fundamental Rights have been conferred only on some person, natural or juristic, a pre-constitution or post-constitution law contravening those rights is void qua those persons but is valid qua other persons on whom those rights have not been conferred. Thus the laws which remain applicable to some class of persons cannot be (1) AIR 1955 SC 781 (2) AIR 1958 SC 468
(3) AIR 1972 SC 425 (4) AIR 1974 SC 1300 still-born or non est even though they were inconsistent with the Fundamental Rights by the Constitution on other persons.
28. The theory of eclipse did not come up for discussion in the above case. However, the view taken in the Ambica Mills case is that a law which is repugnant to the Fundamental Rights enshrined in the Constitution, is neither void ab initio, extinct, still-born or non est, nor is it obliterated from the Statute book. It rather exists in totality without any portion of it being eclipsed by any outside object, and is operative as such for pre-constitutional matters and with regard to persons other than those enjoying the Fundamental Rights. Thus the question whether a law is void or not depends on the answer to the question whether the matter involved pertains to a period when the Fundamental Rights existed or not and if they did, whether the petitioner is the holder of those rights? The Fundamental Rights, according to the latest view of the Indian Supreme Court, on the other hand, in H. H. K. Bharti's case (1) are there to exist permanently as the Parliament cannot amend the Constitution so as to destroy or eliminate them.
29. The Supreme Court of Pakistan considered the above proposition in the case of Province of East Pakistan v. Muhammad Mehdi All Khan (2) and ruled that the term 'void' meant as 'not in operation', or 'not enforceable', or 'in abeyance' so long as the supreme law holds the field. Their Lordships found no difference in the meaning of the term 'void' as appearing in Article 4 (1) and 4 (2) of the then Constitution but distinguished their scope and extent on the wording of the two provisions.
They, therefore, held that the law declared void under Article 4 (1) having been made originally by a competent Legislature need not be re-enacted if the supreme law was no longer operative against the existing law, whereas a re-enactment is a must under Article 4 (2) as the Legislature that made that law was not even competent at the time it enacted that law.
30. The Supreme Court considered the same point again in The Tribunal v. Hashim and followed the above judgment with the following observations at page 265 : "With effect from the 7th October 1958, when the Constitution including the Fundamental Rights was abrogated, all enactments of date prior to the 7th October 1958, are continued in full force according to their terms, and irrespective of any conflict between their provisions and the Fundamental Rights formulated in the late Constitution."
31. In Abul A'la Maudoodi's case the Supreme Court specifically considered the similar notifications issued under sections 16 and 17-A of the Criminal Law Amendment Act, 1908, and declared them as void, being inconsistent with the Fundamental Rights. Considering again the implication of the term 'void' their Lordships held that it only meant `ineffective in the premises' and not obliterated or repealed to the extent of inconsistency. Their Lordships termed the inconsistent law in a state of hibernation but becoming operative again if Fundamental Rights disappear. S. A. Rehman, J. At page 445 of his judgment in Mehdi All Khan's case gave his reason for the view in the following words : "The fact must not be lost sight of that some of the Fundamental (1) AIR 1973 S C1461 (2) PLD 1959 SC (Pak.) 387 rights guaranteed by the late Constitution were available only to citizens of Pakistan and not to aliens. An instance in point is the quality clause included in Article 4 of the late Constitution. In a case of the type which formed the subject of decision by this Court in Waris Meah v. The State PLD 1957 SC (Pak.) 157 if the appellant had been an alien, no relief could have been granted to him and the impugned provisions of the Foreign Exchange Regulation (Amendment)
Act (XXXII of 1956) would have been enforceable against him, in spite of their discriminatory character"
32. The view taken by their Lordships of the Supreme Court finds its support from the wording of Article 143 of the Constitution also. If the import of the word 'void' was to kill the inconsistent provisions and to remove them from the statute book for ever the provision for revival of the same void law on the disappearance of the federal law would not have been there.
33. It is quite clear from the above resume of the prevailing opinions of the various Courts enjoying a legal and Constitutional system similar to ours that a law or its provisions which are inconsistent with the Constitution basic norm or a Supreme law do not die and are neither stillborn, non est or non-existent nor are they effaced or obliterated from the statute book. Rather such a law or such of its provisions do exist totally A to be applicable to the pre-constitutional matters and also to those to whom the Fundamental Rights afford no protection. Further such a law or those provisions may reappear to be operative as soon as the Fundamental Rights or the supreme law cease to exist.
34. It is now well established that when a legal order comes to an end, for whatever reason, the laws made thereunder also lose their effectiveness and in order to continue them in force, the new legal order must expressly sanction it. Reference in this connection be made to the case of United Provinces v. Atiqa Begum (1). It was held by their Lordships in that case that when a new Constitution is enacted and old repealed, a provision to continue existing laws is made in order to negative the possibility of their being no longer in force for the reason of the repeal of the Constitution under which they were enacted.
35. This observation is illustrated by section 292 of the Government of India Act, 1935, which continued in force all existing laws after the Government of India Act, 1915, had been repealed. The same routine was followed by providing Article 224 in the 1956 Constitution and Article 225 in the 1962 Constitution. It is repeated in Article 4 of the Laws (Continuance in Force)
Order, 1958, and so on thereafter. Article 268 of the 1973 Constitution is the one in the field now.
According to Article 268 (1), subject to Constitution, all existing laws, except as provided in that Article, shall continue in force so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. Article 268 (7) defines, 'existing laws' to mean all laws . . . In force in Pakistan or any part thereof, or having extra-territorial validity, immediately before the commencing day.
36. The Criminal Law Amendment Act, 1908, which is under scrutiny in this case was also an existing law. It was held in Abul Al'a Maudoodi's (1) A R 1941 FC 60 ease that this law had been continued in force under the 1962 Constitution as an existing law. On the incorporation of Fundamental Rights in the Constitution in 1964, it became void and, therefore, unenforceable and inoperative. On the promulgation of Martial Law in 1969, the entire Act became operative once again and remained in force till 21st April, 1972, when it became inoperative due to enforcement of the Interim Constitution.
Article 280 of the Interim Constitution continued it in force. The same was done under Article 268 (1) of the 1973 Constitution. The outcome of the above resume is that the Criminal Law Amendment Act, 1908, was continued in force under the 1973 Constitution also.
37. The question then is what is the effect of Article 8 of the Constitution on this law? Article 8 (1) speaks of the old laws that have been enforced under the Constitution. If the Criminal Law Amendment Act ha not been continued in force, there was no question of considering the effect of Article 8 (1) on it as it would be deemed to have become a dead law. Article 8 (2) concerns laws to be made after the Constitution has been enforced. This clause further shows that Article 8 (1) deals with old law that have been carried forward as the existing laws under Article 268. However, as said above, such laws have been carried forward subject to the Constitution and not absolutely.
38. Article 8 (1) provides that any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by Chapter 1 (Fundamental Rights) shall to the extent of such inconsistency be void. The word 'void' has been used in the Constitution in Articles 8 (2), 143 as well as in Article 232 (4) in the same sense throughout. Provisions similar to Article 8 (1) came up for consideration before the Supreme Court in case of Mehdi Ali. Khan under 1956 Constitution wherein it was observed by Munir, C. J. At page 412 of the report:- "That this was the sense in which the word 'void' was used by the framers of the Constitution becomes perfectly clear from Article 192 of the Constitution which envisages a position where by an order of the President the right to move the Court for the enforcement of a Fundamental Right is temporarily suspended. On such suspension being ordered the law becomes immediately operative without its being re-enacted..
(The underlining* is by us).
39. There is, however, a conflicting view in the same judgment of Cornelius, J. At page 432 to say : "But the ascertainment of the inconsistency and the declaration that in consequence of such inconsistency certain provisions in the Act of 1950 were void was dependent wholly upon the existence of the firm rule, laid down as a permanent norm, in Articles 4 and 18 of the late Constitution, and the moment that norm lost its compulsive aspect, the declaration of law by the Supreme Court, affecting the relevant provisions in the Act of 1950 was itself rendered of no effect with the consequence that the infirmity which had been laid over those provisions by reason of the judgment was immediately lifted, and the executive became once again enabled to act in accordance with those provisions free of the peril of interference by the Courts."
40. His Lordship rather thought that the void Act could come into operation on the abrogation of the Constitution by observing at page 434 "although that law regained operation in that respect upon the making of the Proclamation
41. The view of Cornelius, J. Was supported by S. A. Rahman, J. At page 446 of the report as follows :- "With the abrogation of the Constitution, on the promulgation of the President's Proclamation, the Fundamental Rights disappeared from the field entailing the consequence that laws existing on the Statute Book were given a fresh lease of life by the Laws (Continuance in Force) Order, 1958, in their original condition and those of their provisions which were inconsistent with the Fundamental Rights, have been revived in their full vigor............... "
42. What we gather from the above majority view is that such provisions of existing laws as are declared void by the competent Court become operative only after the supreme law or the Constitution, as the case may be, or the Fundamental Rights disappear from the field.
43. The above view is further supported by the reason that there is no provision in the Constitution for suspending the Fundamental Rights. What can be done under Article 233 (1) is that the Legislature can make laws during the period when the Proclamation of Emergency is in force. This is to undo the effect of the first part of Article 8 (2) only with regard to 6 out of the 20 guaranteed rights. There is no provision, however, to undo the effect of the second part of Article 8 (2) or to suspend or by-pass the effect of Article 8 (1). The result is that all the existing laws to the extent of their inconsistency with the Fundamental Rights remain void and the Legislature is incapable of enacting any law in contravention of the other 14 Fundamental Rights. The way out, however, is provided in Article 233 (2) wherein the right of the aggrieved person to move a Court and the power of the Court to enforce the Fundamental Rights can be suspended by an order passed by the President to that effect.
44. The point was considered in Habiba Jilani's case (1) and held that "in such cases the Fundamental Rights referred to in the order are not suspended, only the right to move the Court for the enforcement of those rights is suspended."
45. We may also refer to some observations of Yaqub Ali, J. At page 83 of Manzoor Elahi's case (2) in support of the above view : "We may also notice in this context that under clause (2) of Article 233, the President may by order declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1, Part II, as may be specified in the order shall remain suspended for the period during 'which the Proclamation is in force. But this power is made subject to the restriction contained in the proviso to clause (2) of the preceding Article 232 viz., that nothing contained in paragraph (c) of the sub-Article which makes provision for assumption of certain powers by the Federal
(2) PLD 1975 SC 66 ' Government, while the Proclamation of Emergency is in force, shall authorise the Government to assume to itself or direct the Governor of the Province to assume on its behalf any of the powers vested in or exerciseable by a High Court or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts. One of the provisions relating to High Courts is contained in Article 199 which has been reproduced above.
' The power conferred on the High Courts by this Article cannot, therefore, be suspended while the Proclamation of Emergency is in force. In other words the High Courts will continue to give directions to persons performing functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything they are not permitted by law to do or to do anything they are required by law to do. Similarly declare that any action done or proceeding taken by the said persons has been done or taken without lawful authority and of no legal effect ' Observations of my Lord Salahuddin, J. At page 105 of his judgment in the same case are : "It is true that under the aforesaid President's Order the right to move any Court for its enforcement has been temporarily suspended. But this does not suspend the operation of the Right itself, nor does it, in any way, relieve the person or authority concerned of the duty to comply with the provisions of Article 10 (2) of the Constitution. It is particularly so in the case of an agency charged with the duty of maintaining law and order."
45-A. We may here also refer to Article 8 (5) of the Constitution which provides that the Fundamental Rights shall not be suspended except as expressly provided by the Constitution. We have already seen that there is no express provision of the nature.
46. There can thus be no suspension of Fundamental Rights during the Proclamation of Emergency but only a clog on the right of an applicant to move and on the power of the Court to grant a relief for enforcing the Fundamental Rights. The wording of Article 8 (2) rather presupposes the existence of the Fundamental Rights, as the right to move a Court and the power of the Court to grant the relief, will be required to be suspended only if the rights are subsisting and available. Thus like a time-barred claim, the Fundamental Rights are there but there is no remedy available) during the period of Emergency.
47. The above view is confirmed when we look at the proposition from another angle. A perusal of the Constitution would show that 10 out of the :0 Fundamental Rights are guaranteed to citizens only while other 10 are available to every person. The scheme of the Constitution regarding Fundamental Rights is that whereas Part II, Chapter I of the Constitution confers Fundamental Rights it does not provide any machinery for enforcing the same. This power is given to the superior Courts in Part VII. The power of the Supreme Court is contained in Article 184 (3) of the Constitution saying : "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
' The power of the High Court is embodied in Article 199 (1) (c) which lays down : "199.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.
48. What Article 233 (2) takes away temporarily is only the effect of the above two Articles but not the import of the second part of Article 8 (2) or Article 8 (1) of the Constitution, which remain intact.
49. Again even the feasibility of the revival of the void laws on the abrogation of the Constitution as held by their Lordships Cornelius and S. A. Rahman, JJ. Becomes rather impossible in view of the rule laid down by the Supreme Court in Asma Jillani's case (1) that the Constitution cannot be abrogated. According to the majority view of 13 Judges of the India Supreme Court who heard the case, the Parliament has no power to amend the Constitution so as to destroy the basic structure of the Constitution, including the Fundamental Rights. Reference be made to the case of H. H. K.
Bharti. It, therefore, appears that the Fundamental Rights are there to exist permanently. There is no power in the Constitution to suspend them. The Courts which are under oath to preserve, protect and defend the Constitution may not contemplate any eventuality for the disappearance or destruction of the Constitution itself. The Fundamental Rights thus remain 'in force' permanently but are not operative or enforceable for the period of Emergency if an order under Article 233(2) of the Constitution is there to that effect.
50. It is now well established that it is the exclusive function of the Courts to declare a law as void or ultra vires under its power of judicial review. A declaration by a High Court may be binding between the parties and may also be a declaration on the validity of law to be followed by other Courts unless set aside by a larger Bench of the Supreme Court. However, a declaration by the Supreme Court shall bind all and will be final. Therefore, the laws declared void by the Supreme Court remain void in the sense given above.
51. The next contention raised was that the two impugned notifications were in the nature of executive action and so were effective in view of Article 233(1) of the Constitution during the Proclamation of Emergency. It was, however, not disputed that Article 233(1) confers a power to legislate only in future and that too in contravention of the 6 given Fundamental Rights out of the 20 conferred by the Constitution. It was also agreed that such legislation would be of a temporary nature and would stand automatically repealed on the expiry of the Proclamation of Emergency.
(1) PLD 1972 SC 139
52. The question thus is can such an executive action be taken in contravention of any of the Fundamental Rights other than the 6 during the Emergency ? The view of Yaqub Ali, J. In Manzoor Elahi's case at page 84 of the report is as follows :- "Our Constitution thus ensures that no person shall be deprived of his life and liberty save in accordance with law and that the right conferred on every citizen by the Constitution to enjoy the protection of law is not affected in any manner by the Proclamation of Emergency issued by the President under Article 232. . ."
53. The above view is in line with the previous view of the Supreme Court in Mehdi All Khan's case that any law by an incompetent Legislature is void ab iniiio and, therefore, a nullity. It can thus be safely said that no action in contravention of the Fundamental Rights other than the given 6 would be valid and the same can be set aside by the. High Court on the basis of the guarantee embodied in Article 4 even if not under the Fundamental Rights.
54. Admittedly the impugned action has been taken on the basis of any law made under Article 233(1). The two notifications were expressly issued under sections 16 and 17-A of the Criminal Law Amendment Act, 1908. It was an existing law and had been continued in force as void law under the present Constitution, as discussed above. The other proposition arising in the case thus is whether any executive action can be taken without the support or backing of a valid law? . The Emergency provisions do not arm the executive authority to ignore the rights of the citizens and others guaranteed by the Constitution, on the plea that it is acting in the aid of Emergency requirements.
The additional guarantee provided to every citizen and other persons in Article 4 of the Constitution is in the following terms :- "4.-(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular-
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
55. According to Salahuddin, J. In Manzoor Elahes case at page 101: " Pakistan is based on the rule of law, which is embodied in Article 4 of the Constitution. The same position is reflected in some of the Fundamental Rights enshrined in the Constitution. The Constitution is framed to be followed. It creates no right and imposes DO duty in vain. Article 5 of the. Constitution specifically provides that obedience to the Constitution and law is the basic obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. The commandment is clear and unambiguous, and nobody can get away from or be relieved of this obligation under any circumstance.
56. Similar provisions in Article 2 of the 1962 Constitution came up for consideration before the Supreme Court and their Lordships interpreted the same in the case of Mir Alunad Nawaz Khan (I), in the following words :- "Article 2 is intended to negative any claim by a Government that any category of its acts in relation to citizens and other persons in Pakistan are not subject to law at all. Claims have in the past been made by Governments that a particular act which was challenged was an act of State and was therefore not liable to be challenged. The view taken by the Courts has been that if an act was in fact an act of State it would not be subject to law, but that there could be no act of State with respect to citizens of a country and that in respect of citizens the Government has only such powers as are granted to it by the municipal law, that is, the law of the country. The acts of the Government, however, in relation to other Governments or sometimes in relation to nationals of other States or in relation to enemy aliens are not subject to law."
57. In the case of Manzoor Elahi apart from the observations of Yaqub Ali, J. Already reproduced above, further observations of Salahuddin, J. At pages 101-102 and 108 may be reproduced below with advantage to highlight the point :- ' Pakistan consists of three organs of the State-the Executive, the Legislature and the Judiciary.
Each one of them is bound by the oath not only to preserve, protect and defend the Constitution but also to discharge its duties and perform its functions, honestly, to the best of its ability, faithfully in accordance with the Constitution and the law. For the Executive the oath is taken by the President; the Prime Minister and each Federal Minister or Minister of State; and the Chief Minister or Minister of a Province. For the Legislature it is taken by the Speaker of National Assembly, the Chairman of the Senate, and each Member of the two Houses, namely , the National Assembly and the Senate; and the Speaker and Member of a Provincial Assembly. For the Judiciary it is taken by each and every member of the Superior Judiciary. Each one of the organs is thus responsible for the due discharge of its responsibilities towards and under the Constitution. 'Ubi jus ibi remedium' is another principle of interpretation that applies to the Constitution. Assuming that no remedy meets the eye, it becomes the duty of the Legislature to provide for the remedy and make it apparent.
Remedy or no remedy, the 'will' of the Constitution reigns supreme, and nobody can be permitted to flout the 'will'. So far as a superior Court is concerned whenever and wherever it comes across anything done in violation of the provisions of the Constitution, it must declare such thing as void.
Such a declaration cannot be in vain, for it is hardly in the interests of any Government to countenance illegality. Any omission to comply with the Constitution can also in suitable cases be remedied by a High Court under Article 199 of the Constitution.
' In my opinion, the power so given to a High Court under Article 199 of the Constitution is wide enough to cover not only a case of infringement of Fundamental Rights as contained in Part II of the Constitution, but also to enforce the inalienable right of a citizen (1) PLD 1966 SC 357 as mentioned under Article 4 of the Constitution which runs thus :
58. The view expressed by my Lord S. Anwarul Haq, J. (the present Chief Justice of Pakistan) in the above case at page 147 is also given below "While Article 4 embodies provisions of the utmost importance to the individual in the matter of his life, liberty, body, reputation and property, his right to freedom of action, and immunity from illegal restraint of any kind, yet it does not form part of Part II of the Constitution containing fundamental rights, and, for that reason, any violation of this Article would not bring the case within the four corners of the jurisdiction conferred on the Supreme Court by clause (3) of Article 184 of the Constitution. That jurisdiction has reference only to the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution. Nevertheless, it is clear at the same time that the High Court, acting under the various clauses of Article 199 of the Constitution, would be fully competent to deal with a case involving a violation of the provisions of Article 4 of the Constitution."
59. In view of the above observations of the Supreme Court, it is absolutely clear that no executive authority can take any executive action without the support of a valid law and any action taken in violation of the above rule can be struck down by the High Court under Article 199 of the Constitution as being without lawful authority.
60. As noted above Article 233(1) only refers to future legislation. The executive actions contemplated therein, therefore, necessarily concern the future legislation and not any of the void existing laws. Secondly the Constitution prohibits under Article 8(2) to make any legislation in violation of Fundamental Rights and also does not permit any legislation with the exception of the 6 Fundamental Rights mentioned under Article 233(1) it cannot be said that the executive authorities can achieve the same result by purporting to take executive actions. In any case, observed by their Lordships of the Supreme Court in Manzoor Elahi's case the guarantee under Article 4 is quite separate and distinct from the Fundamental Rights and as no inroads have been permitted, even during Emergency into that provision, by any of the constitutional provision, the said guarantee cannot be allowed to be flouted. The executive authority, therefore, must rely on some valid law in order to support its action.
61. The present case is placed at a better footing. The so-called executive action in the form of notifications had been published in this case on a date when no order under Article 233(2) was in the field. As discussed above, there was no law in operation authorising the respondents to have issued those notifications either. The law under which those two notifications were issued is admittedly inconsistent with the Fundamental Right P No, 17 and was void and so unenforceable. It, therefore, was not available for any executive action in the light of the discussion already made. It was never revived so as to be operative once again on the issuance of the Proclamation Emergency. The two notifications, therefore, could scrutinized by the High Court and we respectfully agree with the learned single Judge that they were issued without lawful authority and are of no legal effect.
62. In view of our findings that the two notifications were void, and, therefore, of no legal effect, we do not consider it necessary for us to go into the other question whether there was material on the record to justify the forming of opinion by the respondents to declare freemason as an unlawful Organization? It has been observed by the learned Single Judge that a statement had been made before him, on behalf of the respondents, that no Officer in the Interior Ministry had seen or read the books on the basis of which the Organization had been declared as unlawful. The learned counsel for the appellants after our much insistence and on being given number of opportunities for the purpose, procured some of the books. We have gone through them but do not think it useful to comment. Suffice it to say that as the respondents themselves did not go through those books, to form their opinion, we need not substitute our opinion for it. This circumstance, however, proves that the discretion vesting in the respondents had not been properly exercised.
' For the reasons given above, we do not find any merit in this appeal and the same is dismissed.
The appellants shall pay the costs.