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Petitioner: SAEED AHMAD KHAN VS Respondent: THE FEDERATION OF PAKISTAN THROUGH THE JUDGMENT
Court Name: Lahore High Court Judge(s): C.A. Rahman, Karam Elahi Chauhan Title:SAEED AHMAD KHAN vs THE FEDERATION OF PAKISTAN THROUGH THE
JUDGMENT
Reported As: PLD 1974 Lahore 18 Result: Order, according Judgment JUDGMENT K. E. CHAUHAN, J.-This judgment disposes of a preliminary objection to the jurisdiction of this Court to entertain and deal with Constitution Petitions numbering 269, challenging orders passed under various Martial Law Regulations concerning employment of the petitioners in service, most of these petitions being directed against orders passed under Removal from Service (Special Provisions) Regulations (M. L. Rs. 58 and 114). 2. On the 10th of March 1972, was promulgated Martial Law Regula--petition No. 114 of 1972 (known as Removal from Service (Special Provisions) Regulation, 1972), whereunder the "competent authority" could dismiss, remove from service, reduce in rank or direct compulsory retirement of a person in Government service or a person in Corporation service, if in the opinion of the said Authority the employee concerned is (a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income, or (b) guilty of misconduct, or (c) inefficient or has for any reason ceased to be efficient, or (d) engaged or reasonably suspected of being engaged in subversive activities. Para. 2(a) stated that the "competent authority" means the President and where, in relation to any person or class of persons the President authorises the Governor of a Province or any officer or authority not being inferior in rank to the person against whom action is proposed to be taken, to exercise the powers of competent authority under this Regulation, includes such Governor or officer or authority." In Para. 3(3) of the Regulation, it is stated that notwithstanding anything contained in any law or in any decision of a Court, nothing in Sub- para. (1) of Para. 3 which authorised the dismissal etc., shall be construed as requiring the competent authority before making an order under that clause in respect of any person to give
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such person an opportunity of showing cause against such order. Para. 4 provided that no action taken, order passed, thing done or power exercised under this Regulation, shall be called in question by or before any Court including the Supreme Court and a High Court or a Tribunal or any other Authority. 3. On the 13th of March 1972, there was issued a notification by the Government of Pakistan, Cabinet Secretariat, Establishment Division, Rawalpindi, bearing No. 2/2/72-DA, which was published in the Extra--ordinary Gazette of Pakistan of the same date, containing a list of a large number of Government and Corporation employees who were compulsorily retired by the concerned competent Authority under the aforesaid Regulation. Similar notification was issued by the Provincial Government as well regarding certain other employees. Some of these employees and certain other employees, who were removed from service under Martial Law Regulation No. 58, have filed writ petitions in this Court which are at present 269 in number and which have been put up before us for hearing. The details of these writ petitions are given in the daily list of the Bench dated 31-7-73 (Copy attached). Case from the side of the respondents was argued by Mr. M. B. Zaman, Advocate-General (Punjab), Mr. Ehsanul Haq, Standing Counsel for the Central Government and Mr. Irshad Hassan Khan, Advocate for WAPDA. From the side of the petitioners, arguments were addressed by Ch. Muhammad Siddiq; Haji Sh. Ghias Muhammad, Mr. M. Anwar, Mr. S. M. Zafar, Mr. M. S. Baqir, Mr. Saeed Akhtar, Mr. Khalil-ur-Rehman Khan, Mr. Khalid Ranjha, Mr. I. U. Haq, Mr. Javed Hashrni, Mr. Ziaullah, Sh. Almas A.I, Ch. Khurshid Ahmad, Major Ishaq Muhammad Khan and Mr. Rafiq Ahmad Khan Bangash. 4. Learned counsel for the Central Government, Provincial Govern--ment and Corporation(s) have raised a preliminary objection to the competency and jurisdiction of this Court to enterain and hear these writ petitions. Their contention is based on Article 281 of the Interim Constitu--petition of the Islamic Republic of Pakistan which in its original form read as follows:- "28 1-(1) All Proclamations, President's Orders, Martial Law Regula--tions, Martial Law Orders, and all other laws made as from the twenty-fifth day of March 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court. (2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty- fifth day of March 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done. (3) No suit or other legal proceedings shall lie in any Court against any authority or any person for or on account of or in respect of any order made, proceedings taken or act done, whether in the exercise or purported exercise of powers referred to in clause (2), or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers." 5. On 3-4-1973, sub-clause (2) of Article 281 was amended, and in its amended form it reads as follows. (The portions added are underlined):----- "(2) All orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty- fifth day of March 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed notwithstanding any judgment of and Court to be and always to have been validly made, taken or done, and shall not be called in question in any Court."
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This amendment was brought about by the Constitution Sixth Amendment Order 1973 (President's Order No. 3 of 1973 i, issued under Article 279(1) of the Interim Constitution which directed that the words which have been underlined by us above shall be deemed always to have been so inserted with effect from 21-4-1972, i.e., the date on which the Interim Constitution came into force. 6. Learned counsel for the respondents in support of their preliminary objection referred to three recent judgments which were rendered by the superior Courts. The first was the decision of the Supreme Court, dated 20-4-1972, in Miss Asma Jilani v. The Government of Punjab (PLD 1972 SC 139in which the Supreme Court held that usurpation of power by Agha Muhammad Yahya Khan on 25-3-1969, was without lawful authority and con--sequently all laws made or actions taken thereunder, during the period of Martial Law, would be illegal. However, the Court retained the power to condone four types of laws and actions, namely (i) all transactions which were past and closed, for, no useful purpose could be served by reopening them, (ii) all acts and legislative measures which were in accordance with or could have been made under the abrogated Constitution of 1962 or the previous Legal Order; (iii) all acts which tend to advance or promote the good of the people and (iv) all acts required to be done for the ordinary orderly, running of the State and all such measures as would establish or lead to the Establishment of the Objectives mentioned in the Objectives Resolution. The Court, would not condone any act which intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. The Court would not also condone anything which seriously impaired the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity (see page 207 as per judgment of Hamoodur Rahman, C. J.). 7. The next judgment in order of time is a decision of five Judges of this Court, dated 6-7-1972, which was rendered in W. P. No. 403/1972 entitled Zia-ur-Rehman v. The State (PLD 1974 Note 3) in which the judgment of the Supreme Court in Miss Asma Jilani's case was copiously quoted and followed. While holding that clause (i) of Article 281 of the Interim Constitution, gave a complete blanket cover to all laws made during Martial Law Period, the majority view was that clause (2) of the said Article, however, was not so sweeping and all embracing as clause (1) was. Clause (1) dealt with laws, while clause (2) dealt with orders made, proceedings taken and acts done or purported to have been made taken, or done on or after 25-3-1969, by any authority or by any person in exercise or purported exercise of the powers, derived (to be brief) from any Martial Law Regulation or other enactment or rule etc. And validated them. The majority view was (i) that this provision did not cover acts, orders or proceedings which were corum non judice or mala fide; (ii) that so far as acts, orders or proceedings which concluded under the repealed laws were concerned, they according to the language of Article 295 of the Interim Constitution were saved only to the extent they were "duly done or suffered under the law." The word "duly" also showed that intention was not to validate corum non judice and mala fide acts. To remain consistent, therefore, it was held that in clause (2) also, validity conferred; did not extend to corum non judice and mala fide acts etc. (iii) that the language used in clause (2) was different from the one used in clause (1) inasmuch as there was no jurisdiction-ouster clause which existed in clause (1) and that (iv) it will not be fair to attribute a motive to the Constitution-makers that they intended to cover and protect acts wholly without jurisdiction or mala fide. M. A. Cheema, J., went a step further and held at pages 115-116 that the (aforesaid limited) validation also covered further continuation of orders made, proceedings taken and sentences passed etc. An argument was raised in that case by the petitioner's counsel therein that the terminology used in clause (2) was confined to past and did not relate to futurity. This argument was repelled by M. A. Cheema, J., and he held as has been mentioned earlier. A. R. Sheikh, J., on page 66 of his judgment held that, "the phrase, `to be' appearing in sub-Article (2) of Article 281 has been rightly interpreted by the learned Attorney- General as one of futurity on the basis of the definition given in Stroud's Judicial Dictionary, Volume
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IV, page 3038 (Third Edition). No authority to the contrary has been cited by learned counsel for the petitioners. Again, the phrase, `always to have been', has been construed, and rightly so, for the past. The result is that the legal fiction created by the word `deemed' will be available both for the past and in future." The judgment of this Court, even though important it was, unfortunately, has not been published in any law report so far and the pages which we have quoted are from a book which was got printed by the Advocate-General for reference in the Supreme Court in appeal. 8. The third judgment is again of the Supreme Court rendered on the 8th of January 1973, in appeal from the judgment of the five Judges hereinbefore mentioned and is reported inThe State v. Zia- ur-Rehman and others (PLD1973SC49The Supreme Court maintained the majority view of this Court and held that it was open to the Constitution-makers to oust jurisdiction of Courts and if in any case the jurisdiction was successfully ousted the Courts could not assume the same. It further held as a proposition of law that jurisdiction of Courts could be ousted even vis-a-vis corum non judice and mala fide acts and that the Constitution-makers possessed full powers in that respect. However, when any jurisdiction --ouster clause comes up for consideration before a Court (they held), it could always interpret its extent and scope in order to find out as to how far the jurisdiction was outsed. After so holding, their Lordships proceeded to examine clause (2) of Article 281 and held that its language was not comprehensive enough to validate corum non judice or mala fide actions. As regards the ouster of jurisdiction, they further held that clause (2) did not contain any such jurisdiction-ouster words, as were used in clause (1). 9. After referring to these three cases, learned counsel for the respondents argued that it was this state of affairs in which the State found itself vis-a-vis the scope and interpretation of clause (2) of Article 281. These interpretations had created a serious difficulty and a threat for the State, which had embarked upon a huge programme of social, economic and legal reforms. One of such programmes was to eradicate the evil of corruption in Government and Corporation employees and a drive in that respect had already been made on 10-3-1972 by promulgation of Martial Law Regulation No. 114 which did away with all the formalities of show --cause notice and hearing and invested a complete power in the "competent authority" to inter alia compulsorily retire any person who in its opinion was suffering from the defects mentioned therein. The fact that there was no provision for hearing, coupled with another fact that it was only the opinion of the "competent authority", which was the sole deciding factor, shows that the aforesaid (reformatory) Regulation was of a very drastic nature and character and was intended to bring immediate results. It was in keeping with the aim, object and scheme of the Regulation, it was contended, that no inroads into it, should be allowed through Courts and it was for this purpose, that even though in the main Regulation itself, the jurisdiction-ouster provision (namely paragraph No. 4), was not so wide, the Constitution-makers rose to the occasion and made it very wide and comprehensive by using various types of words and phrases in clause (2) of Article 281. However, since according to the three judgments, herein--before quoted, the desired results had not been achieved, and doubt and scope was left out, for putting certain rigid construction on clause (2), therefore, the President resolved that doubt and removed that difficulty by enacting P. O. No. 3 of 1973 and gave it a retrospective effect and also added a caution that validity mentioned in clause (2) was to be conferred on various acts etc., "notwithstanding any judgment of any Court" and gave a further indication of his mind by adding a jurisdiction-ouster clause, just in the same fashion as it was contained in clause (1). The amended clause (2), according to the respondents was now all sweeping and admitted of no implications and exceptions. It not only validates all acts etc , but at the same time ousted the jurisdiction of superior Courts, and for this reason, this Court, it was contended, had no jurisdiction to entertain or hear these petitions on any ground whatsoever.
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10. We have given our serious consideration to the plea of the respondents that clause (2) of Article 281 (as amended) is now all, embracing A and admits of no implications and exceptions. However, we have not been able to agree with this contention and our reasons in this respect are a follows: (a) the language of clause (2) of Article 281 talks not merely of laws promulgated only during the Martial Law period but has reference to all types of laws which were in vogue for instance even from any prior period. The date onward from which validity to acts, proceedings and orders is conferred is 25-3-1969, but the laws under which orders may have been made, proceedings may have been taken or acts may have been done, may be of prior or subsequent dates. To raise an argument therefore, that the aim of this Clause was to preserve actions taken in connection with certain social, economic or legal reforms introduced in the country is not correct and this plea in our opinion cannot be allowed to overshadow the true import of clause (2) of Article 281. (b) In a previous judgment in the case of Zia-ur-Rehrnan v. State PLD 1974 Note 3 one of us (K. E. Chauhan, J.) had the occasion to analyse certain provisions of Article 280 for the purpose of showing as to which of the laws after 21-4-1972 were repealed and which were to continue and in what form and to what extent. He actually made a table in that respect which may be referred to. It is not necessary to repeat the said table here, and it will be sufficient to say subject to reason (a) above, that laws mentioned in clause (2) of Article 281 may be of two types, namely, (i) those which are repealed or (ii) those which are continuing. Regarding those which are repealed, Article 295 preserved their effect only to the extent, "anything was duly done or suffered thereunder." In other words, corum non judice and mala fide acts were not protected. The language of clause (2) of Article 281 (as amended) has not brought about any change in that respect, inasmuch as, it has not amended Article 295 and, therefore, to hold that validity conferred under clause (2) of Article 281 is all sweeping, would still be not correct. In this respect, it may be pointed out that it is not the judgment of any Court which so states, but it is Article 295 9f the Constitution itself which so indicates. (c) Regarding laws which were allowed to continue by the Interim Constitution, they all became Acts of the appropriate Legislature and again were of two types, namely, (a) those which were placed in Schedule 1 and were immune from challenge on the plea of Funda--mental Rights and (b) those which were not so immune. Regarding the latter category if any act was done thereunder, the same could be scrutinised by superior Courts on all grounds including the Fundamental rights, while regarding the immuned laws, proceedings thereunder could be challenged on grounds other than Fundamental Rights. This is the effect of cumulative reading of the various relevant Articles on the subject. If the contention of the learned counsel for the respondents was to be accepted, then it would mean that whereas Article 201 preserved the right to challenge aforesaid actions, clause (2) of Article 281, if it is all embracing, would validate them by destroying the cause of action and ousting jurisdiction of Courts. This would create a formidable hurdle and an inherent inconsistency in the working of the Constitution and we cannot impute an intention to the Constitution-makers that they were taking away with] the other hand which they had given by the one. The contention, B therefore, that clause (2) of Article 281 (as amended) was now all sweeping, admitting of no exceptions or implications, is not correct. (d) Stage is now ripe to attend to the amendments which have been introduced by Presidential Order No. 3 of 1973. By this Order after the words "shall be deemed", the words, "notwithstanding any judgment of any Court," have been inserted in clause (2) of Article 281. This shows that the fictional validity conferred on various acts etc., has to be given effect to, "notwithstanding any judgment of any Court". The question is as to what is the validity which has been conferred by the aforesaid deeming fiction. The validity has been conferred on- (i) all orders made, proceedings taken and acts done; (ii) by any authority or person;
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(iii) which were made, taken or done; or (iv) which were purported to have been made, taken or done; (v) on or after the 25th of March 1969; (vi) in exercise of the powers derived from any Presidential Order, Martial Law Regulations, Martial Law Orders, Enactments, Notifications, Rules, Orders or Bye-Laws, OR This indicates that the validity is conferred on the orders, proceedings or acts mentioned in clause (2) of Article 281 and on no others. This validity has to be given effect to "notwithstanding any judgment of any Court", if any judgment of any Court indicated that no such validity could be extended to the - aforementioned orders, proceedings or acts, etc., then that judgment is to be ignored. The words, "notwithstanding any judgment of any Court," in no way, extended the scope of the validity itself, which is to be gathered from the words preceding the words, "shall be deemed". In other words, the words, "notwithstanding any judgment of any Court," have reference to the fortification of the deeming fiction and not to the scope, connotation or limitation of the fictional validity itself. What that fictional validity is, has to be gathered from the validity con--ferring words and after it is so determined, then it should be given effect to notwithstanding any judgment of any Court. It is pertinent to mention that P. O. No. 3 of 1973 has not brought about any change in the matters in and the extent up to which the validity is conferred. That phraseology even uptill now remains the same. The words, "notwithstanding any judgment of any Court," therefore, have not brought about any variation in this respect, though from another point of view, they have tended to fortify the deeming fiction. It will be noticed that in the case of Miss Asma Jilani, it had been held that validity to various actions, legal or otherwise, taken during Martial Law period, could be conferred only by Courts on the ground of necessity and to the extent that such a condonation was permissible within the four principles highlighted by Hamoodur Rahman, C. J., as reproduced in Para. 6 of this judgment. It was to do away with this theory that by adding the words, "notwith-- standing any judgment of any Court", the draftsman wanted to show that the validity could be conferred not only by the Courts but by the Constitution-makers also Whose scope of authority in various respects and field had hitherto been thrown a serious challenge in the aforesaid three reported cases. It further shows that the draftsman wanted to indicate that while granting the fictional validity, he was not bound to confine himself within the so-called "principles of condonation" pointed out in Miss Asma Jeelani's case and could rather confer validity in the manner and to the extent in which it had been conferred in clause (2) of Article 281. That extent and that manner itself, it is to be pointed out, has, however, not been changed in any form by P. O. No. 3 of 19 73. Learned counsel for the respondents contended that the words, "notwith--standing any judgment of any Court", exist in clause (1) of Article 281 as well, and if due to those words, the validity conferred on various laws mentioned therein was all embracing and complete, why the validity conferred in clause (2) should not be similarly complete and all embracing? The plea raised is not sound because there is a vast difference in the text and the terminology of both these clauses and to give a short answer, in clause (1), competency of the authority who may have made various laws is validated, while in clause (2) validation is to be conferred only if the orders made, proceedings taken and acts done are in exercise or purported exercise of powers derived from any relevant law. In other words in clause (1), the source of the competency of the law-maker is not to be gone into or traced, while in clause (2) that exercise has to be done and the fictional validity cannot come into existence unless the orders made, proceedings taken and acts done are traced to the exercise or purported exercise of a power derived from the relevant law. In clause (1) it is not written that all Proclamations, Presidential Orders, Martial Law Orders and all other laws made as from the 25th day of March 1969, made in exercise or purported exercise of powers derived from such and such source are validated.. The validity is not axed with the aforesaid rider
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(which has been underlined") while this rider does exist in clause (2). If in any given cause, therefore, the proceedings are totally corum non judice or mala fide, then the source for so acting being absent,, the question of their falling under clause (2), does not arise and even the words, "notwithstanding any judgment of any Court", cannot come to their rescue so as to make them valid. It is to be pointed out that it is not a judgment of any Court which has made corum non judice and mala fide acts as invalid because invalid they always are, and the sole question to be seen is as to whether the new language of clause (2) of Article 281 validates them. If the…
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