' Consequent upon an announcement by the D. I.-G. Traffic, Lahore, that "owners of scooters and motor-cycles will be challaned if they would be found without 'helmet' over their heads", Saeed Ahmad Malik, Staff Reporter, Daily Imroz, Lahore, presented Writ Petition No, 1279 of 1978 under Article 199 of the Constitution, in this Court.
2. Notice having been issued, in the Rejoinder filed by learned Deputy Attorney-General it was brought to the notice of this Court that the Federal Government had since promulgated an Ordinance known as the Provincial Motor Vehicles (Amendment Ordinance) VIII of 1978, and that section 13 of this Ordinance added section 89-A to the Provincial Mortor Vehicles Ordinance No, XIX of 1965 and it ran as follows: - "89-A. Rider to wear helmet.-No person shall drive, or ride the pillion seat of a two-wheeled motor vehicle except when he is wearing a crash helmet.
' Explanation.-In this section "crash helmet" means a helmet made of such material and meeting such other requirements as may be prescribed."
' It was submitted that the Order/Ordinance has "legal as well as Constitutional locus standi".
2. It appears from the record of this Court that learned counsel for the respondents drew the attention of this Court and the learned counsel for the opposite side to the fact that since a law has been passed -relating to the subject-matter of the petition, the writ petition required an amendment challenging its validity. Learned counsel for the petitioner, however, did not agree and insisted that once a petition is admitted "any subsequent order in respect of the same subject- matter can be validly and legally agitated before the Court in the writ petition without amendment". The Court directed that this question also would be determined on the date fixed for the hearing of the case, i,e, the 5th July, 1978.
3. When the case came up for hearing on the 5th July, 1978, Mr. Zia Mahmood Mirza brought it to the notice of the Court that a belated petition for the amendment of the writ petition had been filed by the petitioner which he opposed. He asked for time to file a reply.
4. The learned Judge hearing the case ordered "the main writ petition is adjourned. Date in office".
5. Mr. Zia Mahmood Mirza, standing counsel for the Federal Government, filed his reply on 9-7-1978 objecting to the amendment of the writ petition on grounds stated. The office fixed the case for hearing before me on the 11th July, 1978. The case had to be adjourned to the 15th to enable Mr. M.
D. Tahir to collect "about 45 law books, because he did not maintain a library." When the case came up for hearing on the 15th, Mr. M. D. Tahir said he was unwell and the case was again adjourned for two days.
6. Since the objections raised in the amended writ petition concerned themselves with points of law, when the case came up on 18-7-1978, I considered it meet and proper to permit the learned counsel for the petitioner to make submissions on all the points raised in the amended writ petition as if they were a part of the writ petition initially presented.
7. Learned counsel for the petitioner made his submissions on the following points:-
(a) Article 48 of the Constitution requires the President to act on and in accordance with the advice of the Prime Minister. Article 89 which deals with Ordinances authorises the President to make and promulgate an Ordinance in the circumstances provided under sub-Article (1). Article 89(2) (A) required that the Ordinance shall be placed before the Assembly.
' There being no Prime Minister and no National Assembly no Ordinance could have been issued unless the Constitution was amended.
(b) Motor vehicles fall within the Provincial List and even the law the amendment of which was under challenge is known as the Provincial Motor Vehicles Ordinance of 1965, it was therefore not open to the Federal Government to have amended that Ordinance.
(c) The Ordinance had not passed through "due process of law". It should have been presented before Parliament and if this could not be done objections should have been invited from the public.
(d) The law runs contrary to the Fundamental Rights and is consequently hit by Article 8 of the Constitution particularly as it creates inroads into the liberty of the citizens.
(e) The D. I.-G. Issued the order referred to above even before the law was enforced where for the order was of no consequence whatsoever.
(f) There was no legal necessity for this law as the people had not asked for it.
(g) In a hot country like Pakistan the wearing of helmets would raise the temperature inside them so high as to affect the mind of the wearer adversely so as to induce accidents.
(h) This country consists of poor people who cannot afford to purchase helmets and since the law would require even the children and the wife of the motor-cycle rider to be similarly equipped, it made the position worse.
(1) It would detract from the inalienable right of the owner of a scooter or motor-cycle to give a lift to any way-farer.
8. These points shall be considered in this judgment seriatim.
9. There could be no doubt that under the Constitution of 1973 (Article 48), the President can act only on the advice of the Prime Minister. It is further correct that the President can promulgate an Ordinance only if the circumstances related under sub-Article (1) of that Article e exist.
' It is also correct that there is no Prime Minister in existence. But the conclusion that the President cannot issue an Ordinance simply because the Prime Minister is not in existence is not correct.
10. After the Government of the country was taken over by the Chief of Staff of the Pakistan Army who appointed himself as a Chief Martial Law Administrator, a situation was created which was supra-Constitutional in nature and the steps taken in this regard were brought into question before the Supreme Court in the case Begum Nusrat Bhutto v. Chief of Army Staff, etc. (1). My Lord the Chief Justice of Pakistan summarised the conclusions arrived at by him in that case in the following words:- "As a result the true legal position will, therefore, emerge as :-
(iv) That the Chief Martial Law Administrator, having validly assumed power by means of an extra- Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized by judicial authorities as falling within the scope of the law of necessity.
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it.
(h) All acts which tend to advance or promote the good of the people ;
(iv) That these acts, or any of them, may be performed or carried out by means of Presidential Orders, Ordinances, Martial Law Regulations, or Orders, as the occasion may require ; and (v)
The power to promulgate all legislative measures referred to in the extract above was thus recognized to exist in the Chief Martial Law Administrator and it was made clear that all such acts as were mentioned therein could be performed or carried out by means, inter alia, of Ordinances as the occasion may require.
11. The President who was previously required to act on the advice of the Prime Minister was thus under the new dispensation required to act on the advice of the Chief Martial Law Administrator.
12. It was further contended that there being no Assembly in existence an Ordinance could not be issued as Article 89(2) (A) of the Constitution required that the Ordinance shall be placed before the Assembly. This argument ignores another declaration of law made by the Supreme Court in the case quoted above at page 716 which runs as follows :- "The 1973 Constitution provides for a clear tracheotomy of powers between the executive, legislative and judicial organs of the State. However, owing to reason of necessity the executive and the legislative powers (1) PLD 1977 SC 657 now stand combined in one authority, for the reason that these two organs of the State had lost their constitutional and moral authority in the circumstances arising since the 7th of March 1977.
The legislative and the executive powers having thus been combined in one authority the absence of the National Assembly was no bar to the issuing of Ordinances and the provision for placing them before such an Assembly went into hibernation in the same way as did some other provisions of the Constitution a fact to which due consideration was given by the Supreme Court) in the judgment cited above.
13. Did the Federal Government have the power to promulgate an Ordinance of the nature with which I am at the moment concerned. In other words could a Statute relating to Motor Vehicles be said to be within the Federal domain. A bare reading of the Federal Legislative List would reveal that such a power had not been placed in the hands of the Federal Legislature. That, however, is not the only sphere in which the Federation can legislate for closely following this list is the Concurrent Legislative List. Article 71 provides the procedure which would operate when a Bill in respect to a matter in the Concurrent Legislative List has to be presented before the House. It makes it clear if any doubt could exist despite the nomenclature 'Concurrent' appearing as the name given to this List, that the Federal Legislative authority extends to the items contained in it.
14. Item No, 33 of this List is "mechanically propelled vehicles". It can hardly be denied that a motor vehicle is a mechanically propelled vehicle or that the Ordinance assailed before this Court has been issued under this item as it relates to such vehicles.
15. There is, therefore, no substance in the submission that motor vehicles fall exclusively within the Provincial sphere.
16. The objection that the Ordinance has not passed through "due process of law" is equally unfounded. To say that it should have been presented before the Parliament is to ask for the impossible as well as to refuse to recognize the dicta of the Supreme Court referred to above which are binding upon all Courts and persons in this country. There is no Parliament in existence and as has been noted above the tracheotomy of power has in the particular circumstances after the 5th of July 1977 been reduced to a bichotomy in so far as the Legislature and the executive have merged into one while the judiciary continues to occupy the position which it held before that day.
17. As Parliament was not in existence was it a condition precedent that the draft of the Ordinance should have been published and objections should have been invited from the people ? To support this submission learned" counsel relied upon the law the discussion of which follows:
18. Reliance was placed on Cases on Constitutional Law "By Bobbs, page 1021". It has taken me quite an effort to trace this book as learned counsel presumed the name of the publisher to be the name of the author. In fact this is a book which has been selected, edited and arranged by one Dudley O Mcgovney and was published by the Bobbs Merrill Company Publishers. At page 1021 of this collection of cases appears a report of a judgment delivered by the Supreme Court of the United States in Southern Railway Company v. Virginia Ex Rel Shirely. The full report can be found in 78 US SCR (Lawyers' Edn.) 260.
19. The General Assembly of Virginia passed an Act giving power to the State High Commissioner to direct a Rail Road Company to take certain steps about the elimination or abolition of existing grade crossing at grade of a State road by a rail road or vice versa. No sooner plans and specifications of the work proposed were submitted by the Commissioner to a Rail Road Company it became the duty of the latter to provide all equipment's and material and to make the construction proposed.
20. If the Company was not satisfied with the plans it could within 60 days of receipt thereof state its objections to the plans and specifications and submit its own recommendations in the shape of plans and specifications in lieu thereof.
21. The Southern Railway Company was served with an Order under this Law and the Company decided to challenge it before the Supreme Court of Appeals of Virginia which did not accept the stand taken by the Company.
22. The Company filed an appeal before the Supreme Court of United States and it was held that :- "Undoubtedly, it attempts to give an Administrative Officer power to make final determination in respect of facts the character of crossing and what is necessary for the public safety and convenience-without notice, without hearing, without evidence and upon this ex parte finding, not subject to general review, to ordain that expenditure shall be made for erecting a new structure.
The thing so authorized is no mere police regulation."
23. This was a case which concerned the exercise of power by a State functionary on the basis of facts found by him or a subjective opinion formulated by him in a matter which would lead to the citizen being deprived of his property. No notice was provided to be given to any such citizen who was to be adversely affected and the Supreme Court of the United States very rightly opined that the exercise of power under that law was hit by due process clause i. e. The Fourteenth Amendment.
24. I have been at pains to try to find out the relevancy of this case to the one which I have to decide and must admit that I have failed to do so.
25. The United States Supreme Court has also observed in the afore mentioned case that :- "There is an obvious difference between legislative determination and the finding of an Administrative official not supported by evidence."
' I am not concerned in this case with the exercise of powers by a public functionary which requires a determination of facts by him. On the contrary here be has no such power and has only to implement the law made by the Legislature as it is without having to make any determination himself whether subjective or objective.
26. As to the suggestion that the draft of the law should have been subjected to public scrutiny before promulgation, I have not been able to find F any legal basis for it neither has any been demonstrated to me.
27. In this connection learned counsel also referred to the "1st Edition of Judicial Review of Administrative Act by S. A. D. Smith. He read from pages 214, 215 and 216. The whole Chapter which begins at this page deals with the review of discretionary powers and its sum total may be reproduced as follows :- "He said that a public body invested with statutory powers affecting private rights must keep within 'the authority committed to it'. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first."
' The case before me is not concerned with any such proposition. No exercise of any discretionary power is involved here and the observations contained in this Chapter are not attracted.
28. My attention was also invited to Roberts v. Charing Cross, Euston and Hampstead Railway Company (1). This is a case in which the Company, authorized by Statute to carry out certain works in connection with their undertaking, started eing so on the site of a proposed Station by night as well as by day. Roberts occupied a house nearby and brought an action to put an end to the Company working at night because it made his house uninhabitable and, according to him, in any case, was a vexatious and unreasonable abuse by the defendants of their statutory powers.
29. In the case before me the abuse of statutory power by anybody is not the subject matter of controversy ; the enactment of the Ordinance itself is being challenged. The dictum of this case :- "If the Legislature has given powers and those powers are being used for the purpose of carrying out the work authorized and it is admitted that the mode in which they are being used is unreasonable, that is an abuse of the power so given and is, therefore, ultra wires" has not even the remotest connection with the question as to whether the law impugned before me was validly promulgated.
30. Reference had also been made to page 369 of Mr. A. K. Brohi's classic, Fundamental Law of Pakistan, paragraph 142, which was read before me, deals with :- "The individual liberty and social control position under our Constitution."
' Mr. Brohi deals with the connotation of the word 'reasonable' in the context of restrictions placed upon Fundamental Rights. I am not concerned with this question in the petition hence there is no occasion for me to dilate upon this citation.
31. I was asked to hold that the impugned law is a negation of the Fundamental Rights recognized by the Constitution of 1973. Without going into the question whether it is so, the fact remains that Fundamental Rights are in suspension in this country these days. Reference may in this connection be made to Begum Nusrat Bhutto v. The Chief of Army Staff, etc. (2) at page 721:- "If, therefore, it is found that the situation of the kind contemplated by this provision of the Constitution exists in Pakistan, then the Chief Martial Law Administrator would be entitled to make an order of (1) (1933) 27 L T 732 (2) PLD 1977 SC 657 the kind which could be made under clause
(2) of Article 233 of the Constitution suspending the right to enfore Fundamental Rights. It has already been seen that the conditions culminating in the Proclamation of Martial Law on the 5th of July, 1977, were so grave that the very existence of the country was threatened, a chaos and bloodshed was apprehended and there was complete erosion of the Constitutional authority of the Federal Government, leave alone that of the various Provincial Governments. The situation had indeed deteriorated to such an extent that it justified an extra-Constitutional step resulting in the suspension of certain parts of the Constitution itself by the Armed Forces. Such being the case, the situation was obviously at least of the kind contemplated by clause (1) of Article 232 of the Constitution. In the circumstances the Chief Martial Law Administrator was justified in providing clause (3) of Article 2 of the Laws (Continuance in Force). Order that the right to enforce Fundamental Rights shall be suspended. It was clearly an order which could have been made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision."
' In these circumstances the argument of learned counsel is not available to him and I need not go through the observations made in connection with Fundamental Rights by Mr. Sharifuddin Pirzada in his monumental book on the subject or those contained in some decided cases cited at the Bar.
32. Under the amended law no order of any public functionary is required for compelling the use of helmets, hence the argument that the order of the D. I.-G. Is ultra vires since it preceded the law is of no avail.
33. The petitioner also thinks that there was no legal necessity for this law. My Lord the Chief Justice of Pakistan, as has already been referred to above, observed in Be um Nusrat Bhutto's case :-
(iii) That the Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative measures namely :-
(a) All acts or legislative measures which are in accordance with or could have been made under the 1973 Constitution, including the power to amend it ;
(b) All acts which tend to advance or promote the good of the people."
34. It would be incorrect to suggest that the enactment with which I am concerned is not for the public good. The aim of this Ordinance is to save the skulls of motor-cycle and scooter riders from being crushed or irretrievably broken in accidents, the number-of which is legend in this country. In any case the Supreme Court has in Zulfikar Ali Bhutto v. State (1) at page 58 observed :- "The reason underlying such a view obviously is that once an extra-Constitutional action or intervention is validated on the ground of State or civil necessity, then, as a logical corollary it follows that the new Regime or Administration must be permitted, in the public interest, not only to run the day-to-day affairs of the country, but also to work towards the achievement of the objectives on the basis (I) PLD 1978 SC 40 of which its intervention has earned validation. In other words, if it can be shown that the impugned action reasonably falls within one or the other of the enumerated categories, then it must be construed as being necessary and thus hold valid under the law of necessity. The word "necessity" has, therefore, come to be used in this context as a term of art, having a certain constitutional and legal connotation as distinct from its ordinary dictionary meaning.
' It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's care while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice.
' Viewed in this perspective, the Post Proclamation Presidential Orders Nos. 3, 4 and 5 clearly fall within the objectives for which Martial Law was imposed in the country on the 5th of July, 1977, to ensure the restoration of democratic institutions under the Constitution. As the Constitution, unfortunately, does not contain any provision for meeting the unprecedented situation which we are considering here, the Press dent, on the advice of the Chief Martial Law Administrator, was clearly not only competent, but also under a solemn obligation, to take steps to ensure fresh elections. In these circumstances, it is not for the Court to substitute its own opinion as to the arrangements necessary to be made in this behalf ; all that the Court is to examine is whether the contemplated measures reasonably fall within the objective in question. We have already said enough to show that the three Presidential Orders in question are directly intended to achieve one of the most important objectives of the imposition of Martial Law. Their validity cannot, therefore, be questioned on the ground that they are not necessary. The Court would be traversing outside the scope of the powers of judicial review in dictating to the Government the procedural and administrative details necessary for the holding of the forthcoming election such as the number of Members of the Election Commission."
The objection on the ground of absence of legal necessity is, therefore, completely devoid of any foundation.
35. Learned counsel for the petitioner submitted that he had consulted a Doctor in the Mental Hospital at Lahore who had refused to give an j opinion in writing but would be prepared to appear in Court and state that in a hot country like Pakistan where temperature varies between 43C and 53C the wearing of a helmet and the resultant increase in the temperature of the wearer's brain is bound adversely to affect him so as to cause accidents. I have no data before me from which I could lawfully infer that this submission made by learned counsel, devoid of any authoritative backing as it is, is correct. In any case, even if it were correct I very much doubt if I could, in the exercise of the powers conferred by the Constitution, declare this piece of legislation ultra vires on this ground.
36. I was then confronted with the fact that we live in a poor country and that owners of motor- cycles and scooters could hardly afford to purchase helmets. On a question put by me, learned counsel gave the information that these helmets were differently priced and that the least expensive out of them was sold at Rs, 75 per piece. This is not a point which could under any known provision of law help me, in declaring the impugned piece of K legislation ultra vires. The petitioner may if so advised petition the Government on this basis.
37. In these circumstances I find that the petition is entirely misconceived, has no legs to stand upon and besides being frivolous is also vexatious. The Federal and the Provincial Governments have had to oppose L this petition and two Law Officers have appeared on several occasions. I would, therefore, dismiss this petition with costs and in the circumstances of the case determine the latter at Rs, 3,000, to be paid in equal shares to respondents Nos. 1 and 2.