PLJ 1990 Karachi 14 (FB)

Present: AJMAL MIAN, CJ, SAEEDUZZAMAN SIDDIQUI, SYED ABDUR

REHMAN, MAMOON KAZI AND ALLAHDINO MEMON, JJ.
MR A. MUJEEB PlRZADA and others-Petitioners
versus
FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN and others-Respondents
Const Petitions No. D-76, D-163 and D-168 of 1989, dismissed on 8-10-1989
(i) Constitution of Pakistan, 1973-
-----Art. 41 read with Arts. 199 and 239-Constitution~Amendment of— Procedure for—
Eighth Amendment—Whether immune from judicial review-Question of-Assuming that
Revival of Constitution Order 1985 was a valid piece of legislation, assumption of office of
President by General Ziaul Haq by virtue of clause (7) of Article 41 was by means of
referendum which was a colourable legislation meant to achieve a desired result by means of
deceit and was liable to be declared as void-He did not enjoy a de jure status as President of
Pakistan-Held: His assent to Eighth Amendment cannot clothe it with validity-Held
further: Revival of Constitution Order 1985 notwithstanding Article 270-A incorporated
therein, is not immune from Judicial review under Article 199 of Constitution-Petitions
allowed and Eighth Amendment Act 1985 declared null and void and of no legal effect (Per
Mamoon Kazi J) [Pp. 129,130,132&134]AW, AX & AY
PLD 1989 SC 29, and PLD 1988 Lahore 49 = PLJ 1987 Lahore 669, distinguished.
(ii) Constitution of Pakistan, 1973-
Art. 59 read with Art. 199—Amendment in Art. 59-Increase of seats of Senate-Challenge to-Whether
amendment can be struck down—Question of--As held that this court cannot strike down any amended
provision of Constitution on any ground other than that it has been made in a manner different to
prescribed by Constitution, no exception can be taken to this amendment-Senate is not subject to
dissolution under clause 3«of Art. 59— Held: If declaration that present Senate has not been legally
constituted, to* granted and fresh election on party-basis is ordered, it will amount to" dissolution of
Senate which is prohibited by clause 3 of Article 59. (Per

Ajmal Mian CJ) [Pp. 58&S9] U, V, W&X

(iii) Constitution of Pakistan, 1973-

----- Art. 199 read with Art. 239—Amendment Bill-Passing of~Assent of President-Whether a de
facto President can give assent-Question of— Assuming that General Ziaul Haq was not a Constitutional
President, yet he was de facto President-Question is whether his acts are saved by de facto doctrine when he
introduced amendments in Constitution which have drastically altered its main features-Article 239 of
Constitution requires assent by President to every amendment in Constitution passed by Parliament-Held:
Reference to President in Article 239 read with Article 75 does not mean to a person who is President de
facto but to constitutional president—Held further: Question cannot be determined by merely calling in aid de
facto doctrine (Per Mamoon Kazi J) [Pp. 124&127JAS, AT, AU
PLD 1970 SC 98, PLD 1984 Karachi 462 and PLD 1979 Lahore 564 ref.
(iv) Constitution of Pakistan, 1973--
—Art. 199 read with Art. 2-A~Amendment in Constitution—Striking down of-Prayer for~Whether High
Court has jurisdiction-Question of— Controversy is a sensitive political issue arid generally court
declines to entangle itself into sensitive political issues in exercise of constitutional jurisdiction-Held: If
High Court has no jurisdiction to strike down a constitutional provision on ground of its being violative
of Objectives Resolution or of basic structure of constitution, question whether court can adjudicate upon
sensitive political issues loses its significance (Per Ajmal Mian CJ) [P. 50]P
(v) Constitution of Pakistan, 1973-
—Art. 199—Eighth Amendment-Assent to~Contention that General was not competent to give his assent as
he was not duly elected President-General was acting as a de facto President-Held: Alleged irregularity in
assumption of office of President by General would not render his official act of giving assent to 8th
Amendment Bill illegal but would be protected by doctrine of . de facto (Per Ajmal Mian CJ) [Pp.
44&45]K&L
PLD 1970 SC 98, AIR 1981 SC 1473, PLD 1984 Karachi 462, (1787) 2 TR 81, (1851) 3 LHC 418, (1886) 118
US 425 and PLD 1989 SC 26 relied.
(vi) Constitution of Pakistan, 1973-
—Art. 199-Eighth Amendment-Enactment of-Challenge to—Whether Parliament was not competent to
pass 8th amendment—Question of— Supreme Court had accorded recognition to Martial Law regime
on conditions contained in Begum Nusrat Bhutto's case-8th amendment was not only passed by
Parliament but it was also assented to by General who was acting in dual capacity as President and
CMLA--Held: Exercise of legislative power by parliament which was even envisaged by Constitution, cannot
be said to be without jurisdiction—Held further: Mala fide cannot be attributed to legislature (Per Ajmal
Mian CJ) [P. 43]J

(vii) Constitution of Pakistan, 1973-

—Art. 199-Eighth Amendment-Passing of-Contention that 1985 Parliament which came into
existence as a result of party-less elections, cotild not act as Constituent Assembly and pass eighth
amendment bill-Eighth amendment bill was passed by National Assembly and Senate as per
procedure under Constitution for its amendment-Held: No irregularity in procedure adopted by
National Assembly and Senate. (Per Ajmal Mian CJ) [Pp. 45&46JM&N
(viii) Constitution of Pakistan, 1973--
—Art. 199-Eighth Amendment-Passing of-Whether brdught about rJy force and coercion by
Chief of Army Staff-Question of~No material on basis of which it can be concluded that
members of National Assembly and Senate were pressurized and that they voted against their
wishes—Held: Submission is based on surmises and conjectures (Per Ajmal Mian CJ) [P. 46]O
(ix) Constitution of Pakistan, 1973-
—Art. 199-Eighth Amendment-Validity of-Challenge to—Contention; that by virtue of decision
in Begum Nusrat Bhutto's case, power to amend constitution vested in CMLA and this power
could not be delegated by CMLA to any other body, as such Eighth Amendment passed by
Parliament while Martial Law was still in force, was wholly invalid-Effect of decision in Begum
Nusrat Bhutto's case was displaced by PCO validity whereof was recognized by all courts including
Supreme Court-Held: From 24-3-1981, all powers were derived by CMLA/President under PCO
of 1981-HeM further: All Judges had taken oath under Constitution as amended by
Eighth Amendment and as such they cannot declare any part of this Constitution 4s invalid after
having taken oath to defend it (Per Saeeduzzaman Siddiqui J) [Pp. 97&98]AM & AN
 PLD1973SC49/v?//ed.
(x) Constitution of Pakistan, 1973-
—Art. 199—Eighth Amendment-Validity of-LChallenge to~Controversies of political nature-
Whether can be resolved by Court-Question of— Objection to validity of these amendments rests
mainly on ground that same have concentrated powers in hands of an individual or balance of
power has tilted in favour of President—From President upto Members of
Provincial Assemblies and Judges of superior courts all have taken oath under Constitution as
amended by Eighth Amendment-Held: These controversies are more of a political nature than to
be treated as a legal ones—Held further: Constitutional amendment cannot be brought under
challenge before High Court under Article 199 of Constitution on ground that it had effect of
changing/altering basic structure of Constitution (P«sr Saeeduzzaman Siddiqui, J). [Pp.
92&96]AK & AL
AIR 1967 SC 1643, AIR 1973 SC 1461, AIR 1980 SC 1789, PUM973 SC 49, PLD 1976 SC
57, PLD 1977 SC 397 and PLD 1983 SC 457 ref.

(\i) Constitution of Pakistan, 1973--

—-Art. 199-Eighth Amendment-Validity of-Challenge to-Political case and political question—Distinction
between—A political case may be subject to adjudication by court but a sensitive political question may not
be subject matter of adjudication—Held: Challenge to Eighth Amendment on ground that it was not
passed according to Constitution is not a political question- Held further: What should be balance of
power inter se President and Prime Minister is a sensitive political question which is not suited for
adjudication by Court (Per Ajmal Mian, CJ). IP.,63] AB
(xii) Constitution of Pakistan, 1973—
—Art. 199-Eighth Amendment-Validity of~Challenge to-1988 elections on party basis were held on basis
of amended Constitution-Oath was taken by every one after lifting of Martial Law, under amended
Constitution—Held: If certain: amended provisions of Constitution are declared as violative of Objectives
Resolution or of basic structure of Constitution, it would disturb basis on which present structure of
democracy is grounded-Held further: This is highly sensitive and politicized controversy which has
unfortunately assumed great significance in view of polarized and charged political climate obtaining in
country-Questions raised in petitions should be resolved by consensus of people through Parliament or by
other mechanism provided under Constitution—Petitions dismissed.(Per Ajmal Mian, CJ).
, [Pp. 64&65JAC, AD & AE
(xili) Constitution of Pakistan, 1973-
—Art. 199-Elcctions of 1985-Hcld on party-less basis-whether elections can be declared as illegal-
Question of-Eficacy and importance of political parties observed in Miss Benazir Bhutto's case by
Supreme Court-It cannot be held that political parties have no par| to, play—Held: It is too late to declare
that National and Provincial Assemblies of 1985 on partyless basis had no legal status or that they were
illegal bodies—Held further: Important role played by 1985 parliament in getting Martial Law lifted,
cannot be denied (Per Ajmal Mian CJ). [Pp. 37&38JC, D&E
(xiy) Constitution of Pakistan, |973-
—-Art. 199-Elections of BBS-Validity of-Chaltenge to-Whether held by usurper-Question of-Events
between 5th July, 1977 uplo holding of general elections of 1988 were tested and upheld by superior courts in
various cases-Held: It is no more open to argument that late General Ziaul Haq was usurper or that his
acts and legislative measures should be looked upon as acts of usurper and tested and condoned on
principles laid down in Asma Jillani's case-Held further: It cannot be said that general elections of
1985 were held under rule of a usurper (Per Saeeduzzaman Si<Jdiqui, J).
[Pp. 80&81]AFAG & AH
(xv) Constitution of Pakistan, 1973-
—-Art. 199-Elections of 1985-*Validity of--Challenge to-Whether same can be declared invalid being
on partyless basis-'Question of—In Benazir Bhutto's case, Supreme Court was examining sub-
constitutional legislation (Political Parties Act) in juxtaposition with provisions of Art. 17
of Constitution which guaranteed right of association after restoration of Fundamental Rights-Held:
Observations in Benazir Bhutto's case cannot be used as authority for declaring partyless elections of 1985 as
invalid (Per Saeeduzzaman Siddiqui, J). [P. 82]AJ.
PLD 1988 SC 416 ref.
(xvi) Constitution of Pakistan, 1973-
—Art. 199-National Assembly of 1985-Brought in by partyless elections— Whcther can be declared as illegal-
Question of-No constitutional deviation was involved in holding elections on partyless basis in 1985 as same
were held under President Order No. 5 of 1977 which allowed such elections-President Order No. 5 of 1977 is
protected under Art. 270-A which has been held to be competently enacted-Held: Declaration that Assembly was
illegal, cannot be-given (Per Ajmal Mian, CJ). [P.42JH
(xvii) Constitution of Pakistan, 1973-
—Art. 199-Powers of High Court—Referendum Order-Mala /?*/<?--Whether High Court can go behind
motive of legislature-Question of-Refcrendum Order was promulgated by General Ziaul Haq in exercise of
powers under PCO-He was same individual who was exercising both executive as well as legislative functions-
Held: His legislative functions cannot be outside pale of judicial scrutiny-Held further: High Court is competent
to go into question of mala fide raised by petitioners (Per Mamoon Kazi, J). [Pp. 120,123&124] AO, AP, AQ &
AR
PLD 1959 (WP) Lah. 76 and PLJ 1987 Lah. 669 rel.
(xviii) Constitution of Pakistan, 1973—
—Art. 199 read with Art. 2-A-Provisions of Constitution—Whether can be struck down being violative of
Objectives Resolution-Question of~ Consistent view of Supreme Court has been that a constitutional
provision cannot be struck down on a ground other than that it was passed in a manner other than provided under
Constitution-Held: In presence of unambiguous dictums of Supreme Court, it is not open to this court to
hold that a provision of Constitution can be struck down on ground of its being violative of Objectives
Resolution or of national aspiration or of higher ethical notions or philosophical concepts of law or of basic
structure (Per Ajmal Mian, CJ). [Pp. 53&57J Q, R, S & T
PLD 1973 SC 49, PLD 1974 SC 151, PLD 1976 SC 57, AIR 1967 SC 1943, AIR 1973 SC 1461, AIR 1951 SC
458, AIR 1965 SC 845, PLD 1975 SC 507, PLD 1977 SC 397, PLD 1983 SC 457, PLD 1988 Lah. 725, PLD
1989 Kar. 404 and PLD 1966 SC 1 ref.
(xix) Constitution of Pakistan, 1973-
—Art. 199~Provisions of Art. 270-A-Competently enacted-Whether 1985 Parliament can be declared as
illegally constituted—Question of—Judicial pronouncements of superior courts in various cases that Article
270-A was competently enacted—Held: In presence of judicial pronouncements of superior courts, it is not
open to this court to hold that Parliament of 1985 was not legally constituted (Per Ajmal Mian, CJ). [Pp.
39&42]F&G
PLD 1989 SC 26, PLD 1986 Kar. 516, PLD 1987 Kar. 296 and PLD 1988 Lah. 49=PLJ 1987 Lah. 669 rcf.
(xx) Constitution of Pakistan, 1973-
—Art. 199-Referendum Order-Legislation of-Whether Mala fide-Question of--Question referred to
referendum was clearly misleading and even if majority of votes casts were "yes" voles, yet by no measure of
reason, it could be inferred that General Ziaul Haq had been elected as President of Pakistan-There was no
nexus between votes cast in favour of answer "yes" and election of General Ziaul Haq as President-Held:
Referendum Order was a legislation in bad faith and mala fide because in reality it was not what it
ostensibly appeared to be (Per Mamoon Kazi, J). [P.128]AV
PLD 1974 SC 151 rcl.
(xxi) Constitution of Pakistan, 1973-
—Art. 199--Scnate--Legality of-Challenge to-Whether petitioners have locus slandi-Qmstion of-Legality of
Senate has been challenged by petitioners on ground that they wanted to be candidates for Senate-Held:
Except writ of habeas corpus or a writ of quo warranto which can be invoked by any person, other writs can
be prayed for only by an aggrieved party (Per Ajmal Mian, CJ). [Pp. 59&60] Y&Z
(xxii) Constitution of Pakistan, 1973-
—Art. 270-A-Breaches of conditions by General Ziaul Haq-Whether had become usurper-Question of—
In Begum Nusrat Bhutto's case, Supreme Court had accorded recognition to Martial Law regime on
conditions which inter alia included holding of free and fair elections at earliest possible time and Superior
Courts would have power of judicial review—Conditions were flouted first by incorporation of Article 212-A
which was followed by PCO providing blanket immunity from scrutiny of all past and
present acts/actions, orders, proceedings of Martial Law Authorities-Held: It could be urged that his
position had become somewhat similar to that of General Yahya Khan and ratio decidendi of judgment in
miss Asma Jillani's case would be applicable-Held further: But Article 270-A having been held by superior
courts as validily enacted, above controversy has become academic and no useful purpose would be served
in going into same in detail (Per Ajmal Mian, CJ). [Pp. 31&32JA&B
PLD 1972 SC 139, PLD 1973 SC 49, PLD 1974 SC 151, PLD 1976 SC 476, PLD 1983 SC 457 and PLD
1988 SC 416 ref.
(xxiii) Laches-
—Senate—Challenge to-Whether petition is hit by principle of laches- Question of—Senate came into
existence in 1985 and half of its members retired in March, 1988, in whose place, new members were
elected—Petitions. have been filed in April, 1989—ileld: Petitions suffer from .-laches—Ik-Id further:
However, a petition which involves questions of public importance • as to interpretation of Constitution,
cannot be dismissed on ground of laches -.-• alone. (Per Ajmal Mian, CJ.) [Pp. 60&61JAA
PLD 1989 SC1G6 relied
Mr. A Mujccb Pirzada, Advocate in person (in CP-76/89). Mr. Muzaffawl-Haq, Advocate in person (CP-
163/89). Mr. Rasheed A. Akhund, Advocate for Petitioners (in CP-168/89). Mr. Yahya Bakhtiar, Attorney
General on court notice, Mr. S^4. Wadood, Deputy Attorney General for Federation.
Af/S A~A. Fuzed, Klialid M. Ishaque, S.M.Zafar, Aijaz Ahmad, S.Zahid Hussain, Makhdooin AH KJian,
Obaidur Rahman, N^A.Farooqui, Hassan A. Shaikh, Sabiliuddin Ahmad and Afa/z/ooz Yar KJian, Advocates
for Respondents.
Mr. A.H.Labho, Advocate General, Sindh.
Dates of hearing: 25,26,27 and 28-9-1989 and 1,2 and 8-10-1989.
JUDGMENT
Ajmal Mian, CJ.--(l) By this judgment, I intend to dispose of the above three constitutional petitions, as they
involve common questions of facts and law.
In-C.P. No. D-76/1989, the petitioner is an advocate of the Supreme Court of Pakistan and of the High Court
of Sindh, and belongs to a political family, and wanted to contest for a Senate seat, has impugned Eighth
Amendment Act of 1985 (hereinafter referred to as the Eighth Amendment) as ultra vires the Constitution
of 1973 (hereinafter referred to as the Constitution) and has sought declaration that the election to the Senate
be declared to be in violation of the provisions of the Constitution. He also sought direction to hold fresh
election to the Senate under the provisions of the Constitution. A declaration is also sought that the Parliament
under a constitutional system is not competent to change the basic structure of the Constitution.
In C.P. No. D-163/1989, the petitioner is also a practising adovcate and has also impugned the Eighth
Amendment and has sought a declaration that it is unconstitutional, invalid and colourable exercise of power
and cannot be treated as part of the Constitution and is fraud with the Constitution.
Whereas, in C.P. No. D-168/1989, the petitioner claims to be a voter enrolled in Nawababad Lyari, in the
city of Karachi, from where it is alleged that he wanted to seek membership of the Senate, has sought
declaration that the extension of the term of the members of the Senate from four years to six years as amended
in Article 59(3) with all consequential amendments made therein by the Revival of the Constitution of 1973
Order 1985 (hereinafter referred to as P.O. No. 14/1985) and the Constitution (Eighth Amendment) Act,
198& are unconstitutional, null and void. He has also sought declaration that the elections to the present
Senate having not been held in March, 1987 in accordance with the provisions of un-amendment Article 59, its
present composition and existence is null and void and that the continuation of the Senate and its functioning
beyond 20th March, 1989, would be null and void and ultra vires. Direction has also been sought .against rhc
Election Commission of Pakistan to arrange to hold fresh elections to elect the members of the Senate before
th 20lh March, 1989. It may be observed that further declarations have been sought to the- effect
thatt the Parliament being the creature of the Constitution and noticing the .constituent assembly, is not
competent to alter the basic structure of the Constitution, that the CM LA being usurper of the will and
sovereignty of the people all his acts and laws are, to be judged on the criterion of "condontion" and riot on the
principle of "legitimacy", that the Referendum of 1984 was ab inilio void, mala fide and fraud upon the
Constitution and the people of Pakistan and that the CM LA was not a duly elected President and, therefore,
had no authority to assent to,the Eighth Amendment under Article 75. Further declaration has been sought to
the effect that the Eighth Amendment pursuant to P.O. Nos. 14, 20 and 24 effecting the basic structure, is
unconstitutional and that the Constitution of 1973 in its^original from unamcndcd by the Constitution Fifth
Amendment Act, 1976 and. Seventh Amendment alongwith Article 2(a) is liable to be restored.
In C.P. No. D-168/1989 inter alia the Chairman Senate has filed a detailed Written Statement verified on
solemn affirmation, wherein various factual and legal averments contained in the memo of petition have been
denied and the maintainability of the petition has also been challenged.
2. (a) Mr. Abdul Mujeeb Pirzada, in support of his petition, has urged following contentions:—
(/') That in the case of Begum Nusrat Bhutto vs. Tire Federation of Pakistan reported in PLD 1977 SC 657 the
Honourable Supreme Court' had granted conditional recognition to the Martial Law with the object
to facilitate holding of free and fair elections and subject to the review of the actions of the Martial Law
Authorities and/or by the Superior Courts and that the power to amend the Constitution was restricted for
achieving the above objective, namely, to hold free and fair elections.
(//) That the PCO, which was enforced in March, 1981 in fact substituted the Constitution of 1973 and the
elections to the National and the Provincial Assemblies, which were held in February, 1985 were hot the
elections in terms of the provisions of 1973 Constitution but were held under the PCO.
(Hi) That the elections of the Members of the Senate by the Members of the Provincial Assemblies, who
were not elected in terms of 1973 Constitution, were not legal.
(/V) That the amendments in the Constitution in the form @f Eighth Amendment have been made by the
National Assembly and the Senate which were not competent in law to amend the 1973 Constitution.
(v) That in any case even if it is to be presumed that the elections to the National Assembly were legal, it
could not have changed the basic Structure of the Constitution.
(v/) That since the elections to the National and the Provincial Assemblies have been held in November, 1988
on party basis, fresh election to the Senate should have also been held on party basis arrd the Senate
should have been elected by the Members of (he Provincial Assemblies, who were elected on party basis.
(»'//) That the doctrine of State necessity is a doctrine of condonation and not of validation and, therefore, the
past and future acts/actions are to be judged on that basis.
(yiii) That in fact the PCO, issued on 24-3-1981 amounted to abrogation of the Constitution.
(a) That the act of abrogation of Constitution is punishable under Article 6 of the Constitution and,
therefore, no court can condone the acts of a usurper abrogating the Constitution.
(/)) Mr. Muxaffarul Haq, in furtherance of his petition, has contended as undcr:--
(/) That since the CMLA at the relevant lime had the power to amend the Constitution, the Parliament was not
competent to pass the Eighth Amendment.
(ii) That the CMLA had no power to delegate his power to amend the Constitution to the Parliament.
(iii) That the Conduct of the CMLA is relevant for interpreting the provisions of the Constitution.
(iv) That the Constitution docs not admit/permit sweeping changes in its frame-work through amendments.
(v) That the Eighth Amendment is colourable exercise of the legislative power.
(c) Mr. Rashccd A. Akhund, in support of his petition, has made following submissions:-
(i) That upon the issuance of P.O.No.14 of 1985, which came into force on 2nd March, 1985, General
Mohammad Ziaul Haq (hereinafter referred to as the General) had ceased to have any power to amend
the Constitution and, therefore, President Order 20 of 1985 issued on 17th March, 1985 purporting to restore
original Article 239 was of no legal effect.
(ii) That since under the amended Article 239 in terms P.O.No. 14 of 1985, all amendments to the
Constitution, were to be referred to the Provincial Assemblies and as the Eighth Amendment was not
referred to the Provincial Assemblies, it was not legally passed.
(iii) That since the CMLA was accorded recognition by the Supreme Court in the case of Begum Nusrat Bhutto
for limited purpose for holding of free and fair elections and for restoring democracy in orderly manner in
the shortest possible time inter alia subject to review of the Martial Law Authorities/Courts acts, actions and
orders by the Superior Courts, he became usurper when he enacted Article 212-A in 1979 or upon issuance of
the PCO which purported to deprive the Superior Courts,
its jurisdiction to scrutinise llie acls/action/ordcrs of the Martial Law Authorities or Courts.
(iv) That a referendum implies choice/option but the questions for the Referendum held by the ficncral were
so framed, thai they did not give any choice/option to the voters and hence in fact it was not a referendum but
was a fraud committed upon the people and, therefore, its result was nullity in law.
(v) That the CMLA was given the mandate within the doctrine of necessity and that he was not soverign
legislature, which could amend the Constitution in any manner, which he liked.
(vi) That since the Constitution envisages British Parliamentary Form of Government, the party-less elections
to the National and Provincial Assemblies in February, 1985 were violalivc of the provisions of
the. Constitution, and, therefore, were not legal and valid.
(vii) That there was a marked distinction between the Parliament which had passed 1973 Constitution and that
which came into existence on account of 1985 elections inasmuch as the former was to act as a constituent
assembly, whereas, the latter was not to act as such, therefore, it could not have passed the Eighth
Amendment.
(viii) That the impugned Eighth Amendment is violalivc of the basic structure of the Constitution and,
therefore, is liable to be struck down.
(be) That the Parliament being a creature of the Constitution could not have passed Article 270-A affirming the
Rule of the Martial Law.
(x) That increase in the number of scats of the Senate and its duration are also illegal and violative of the
Constitution and, therefore, present Senate has no legal sanctity.
3. (a) Mr.Yahya Bakhtiar, learned Attorney General, who has appeared in response to the Court notice,
has urged as follows:-
(i) That the General having failed to hold fair elections in terms of Begum Nusrat Bhutto's case, had ceased to
have mandate to rule the country or to prolong his rule and to amend the Constitution according to his
whims or liking.
(ii) That P.O.No. 14 of 1985 was issued by the General when the Parliament existed and, therefore, he had no
power to issue the same.
(iii) That some of the provisions of the Eighth Amendment are violative of the Objectives Resolution and of
the basic structure of the Constitution
(iv) That since the elections of the National and Provincial Assemblies in 1985 were held on non-party basis
under constraints, they were violative of the Objectives Resolution and of the basic structure of
the Constitution which envisages a parliamentary form of the Government.
(v) That since the Senate has been elected by the National and Provincial Assemblies of which elections were
held on partyless basis, it has no legal

(b) Mr.S.A.Wadood, learned Deputy Attorney General appearing for the Federation adopted the
arguments of. Mr. Yahya Bakhtiar, learned Attorney General and has submitted as follows:
the power to amend the Constitution is subject to built-in constraints and that sonYc of the provisions of the
Eighth 'Amendment are violative of the above built in constraints and of the basic structure of the
Constitution.
(ii) That the amcndenls made in the Constitution were for the beticfit of an individual and, therefore, the same
cannot be sustained.
,(c), Mr.Abdul Hafee/ Lakhb. learned Advocate General Siridh, adopted the submissions, made by the learned
Attorney General and the learned Dy. Attorney General.
(a) Mr.S.M.Zafar, Advocate, who appeared on behalf of, a number of respondents/senators, has urged
as under:-
(/) That since the elections of the National and Provincial-Assemblies were ; held in Feburary, 1985 prior to
the restoration of the Fundamental Rights including Article 17, on 30lh December, 1983, the same
wcs&notiviolative of above. Article 17 of the Constitution or of any other prpvisipn of law and, therefore, the
members of the National and Provincial Asscmblfcs were properly elected.
(//) That since .thc( /National and Provincial .Assemblies were properly constituted, the election of the Senate
was also legal.
(///), That the jfaet that the Honourable Supreme Court m the case o*f Haji Muhammad Saifullah Khan, declined
to restore the. National Assembly inter alia for the reason that it was an assembly of which elections
were : held on non-party basis does not imply that the NaUanal«&$ssanbty;wa$ not legally constituted, on the
contrary, the factura that 5l was heWsbyjltw Supreme Court that its dissolution was illegal implies that it was
legally and properly constituted.
(<>) That if it is to be held that Article 270-A has been legally, incorporated in the Constitution, it must follow
that the alleged illegal acts and- deeds on the part of the CM-LA, would not be relevant for the purpose of
deciding the legal issues involved in the present cases.
(v) That since the Eighth , Amendment has been passed by the Parliament, ,. which was legally and
properly constituted, no exception can be taken to the same.
-.(v/) That the doctrine of basic Structure has not yet been accorded any recognition by the Superior Courts in
Pakistan and, therefore^ the same cannot be pressed into service.
(yii) That the fact that Eighth Amendment was passed before lifting of the Martial Law docs not affect its
'sanctity or legality as even the Interim Constitution of 1972 was passed while the MartialLaw was still then in
(yui) That the question of balance of power inter se between the President and the Prune Minister and as
to the number of seats in the Senate or Its duration or the increase in the number of seats of
National Assembly ara political questions which are to be resolved in the Parliament and not through the
Court.
(iv) That since clause (3) of Article 59 of the Constitution prohibits dissolution of the Senate, this
Court cannot grant a relief in violation of the above provision.
(x) That the writ jurisdiction is a discretionary jurisdiction, this court wifl not grant any relief which may
create chaos and uncertainty in the country as striking down of the Eighth Amendment would
adversely affect the incumbents of the offices of the President, the Prime Minister, the Chairman
and the Vice Chairman of Senate, the Members of National Assembly and the Senate, -Federal
Shariat Court and the High Court Benches, etc.
(ft) Mr. All Ahmed Fazeel, Advocate, assisted by Mr. Makhdoom AM Khan, Advocate, has submitted as
follows:-
(i)That the jurisdiction of this Court under Article 199 read with Article 1*75 is subject to Constitution,
whereas, under Article 226 of the Indian, Constitution Act, there is no such qualification and hence
this Court cannot act against the provisions of the Constitution.
(//) That any changes made in laws during the suspension of the Fundamental Rights cannot be tested
on the ground of its being violative of the Fundamental Rights at the time when the said changes were
made.
(IH) That the petitioners in C.P. No. D-76/1989 and D-168/1989 have no locus standi to file
the above petitions for challenging the legality of the Senate on the ground that they wanted to contest
the Senate election.
(/v) That the writ being a discretionary relief, it cannot be granted as the petitions involve political
issues, for which there are no judicially manageable standards available to resolve the same.
(v) That even otherwise, this Court should decline writ as the grant would result into chaos and
disaster.
(w) That the extension of term of the Senate from four years to six years is not violative of any principle.
(wi) That no provision of Constitution can be struck down on the ground that the same is violative of the
bask structure of the Constitution or of the Objectives Resolution.
(viii) That all laws including the Eighth Amendment in the Constitution are protected under Article 270-A.
(a) That C.P. No. D-76/1989 and D-168/1989 suffer from laches inasmuch as the election of the Senate was
held in February, 1985, whereas the petitions have been filed in 1989.
(c) Mr. Khalid M. Ishaque, learned counsel appearing for some of the respondents/senators has adopted the
arguments of M/s S.M. Zafar and Afi Ahmed Fazeel, and has urged as under:--
(i) That though the learned Attorney General has submitted that this Court can scrutinise each of the
amendments made in the Constitution and can declare it valid or invalid but has not pointed out any objective
standard, on the basis of which the above exercise can be taken by this Court.
((7) That though the learned Attorney General has made repreated reference to the Objectives Resolution but
has not referred to Article 2-A of the Constitution, which was enacted by the Eighth Amendment and that
the Objectives Resolution itself without being part of the Constitution cannot furnish basis for striking down any
of the provisions of the Constitution.
(Hi) That for the transition from the Martial Law to Democracy some methodology was to be evolved, and
as the said situation was not covered by the provisions of the Constitution, Article 270-A on the pattern of
Article 281 of the Interim Constitution 1972 and 269 of the W%& Constitution had to be incorporated.
(iv) That even in Western Countries there has been rethinking about the efficacy of political parties and,
therefore, the factum that the elections of 1985 were on the basis of non-party would not affect its legality
basides the fact that Article 17 of the Constitution was under suspension.
(if) Mr. Nasim A. Faruqui, learned counsel appearing for some respoondents/senators, has adopted the
arguments of M/s S. M. Zafar, Ali Ahmed Fazeel and Khalid M. Ishaque and submitted as under:--
(/) That the controversy raised as to the power of amendment of the Constitution under Articles 238 and
239 of the Constitution involves political issues, which are not suitable for adjudication by this Court
in exercise of its constitutional jurisdiction.
(//)That the sitting members of the Provincial and National though have already held a number of sittings
during last about 10 months since the time they were elected but they have not taken any exception to the
Eighth Amendment and have not even moved a bill and, therefore, people's representatives have acquiesced to
the same, and that the petitioner cannot challenge the same through collateral proceedings/side wind.
(Hi
)
That the observation in par a- 16 of the judgment in the case of Ac Federation of Pakistan vs. Malik Ghulam
Mustafa Khar that die plea that the parliament was not competent to enact Article 270-A was left open relates
to the Supreme Court and that as far as the High Courts ate concerned, the above question stood concluded
by* a number of judgments.
(iv) That this court is not competent to strike down an; Constitution on the ground of its
being violative of the

(v) That if the Eighth Amendment is to be declared ultra vires and besides adverse consequences
highlighted by M/s S. M. Za£tf-4ad-^3i-'-Vi Ahmed Fazeel, even Vth Schedule to the Constitution
relating to •£&* emoluments of the Superior Court's Judges will be knocked out.

(e) Mr. Sabihuddin Ahmed, learned counsel appearing for respondent No. 3t * in C.P. No. D-168/1989, has
urged as under:--
(i) That the elections were held in 1985 on non-party basis because of * President Order No. 5 of
1977 and not because of any amendment in the* Constitution and, therefore, there was no constitutional
deviation.
(«) That since under clause 1 of Article 233 the declaration of emergency' made on 3-12-1971 and that
declaration was not withdrawn by the P.O. No. 5 of 1977 was issued and was amended, the same was
valid ta view of the express provision contained in clause 1 of Article 233.
(Hi) That upon the withdrawal of the proclamation of the emergency, the law providing elections on non-
party basis because of Article 17 would stand repealed but the past transactions would not be affected
because of saving provided in Article 264 of the Constitution.
(fv) That this Court has power to strike down a provision of the Constitution ,-: on the ground of its being
violative of the basic structure of the Constitution but the extension of the period of the Senate from four
years * to six years or the increase in number of seats does not violate the base . structure of the
Constitution.
Q) Mr. Obaidur Rehman, learned counsel, who has appeared on behalf Of '-.the intervenor in C.P. No. D-
76 of 1989, has also adopted the arguments of the - ^
learned counsel for the respondents and has contended as under:--
(/) Since the Senate is a permanent institution under Article 59 of the Constitution, ordering of its
fresh elections will amount to its dissolution ' and since this Court's power under Article 199 is subject to
Constitution,5'- it cannot grant the above
relief.
(ii) That as the National Assembly of which elections were held on party basis, is in existence, the same
is the appropriate forum to agitate the controversy in issue and not the Court. %
(Hi) That the Court will have to take into consideration regard of public •' welfare before granting any
relief.
(iv) That the petition suffers from laches.
5. Before taking up the contentions of the learned counsel for the parties, it may be pertinent to
state briefly the relevant facts and to refer to the operative portion of the judgment in the case of
Begum Nusrat Bhutto and as to the contents of the Eighth Amendment. It may be abserved that on 5th
July, 1977, thft General, who was the then Chief, of the Army Staff proclaimed Martial Law throughout
Pakistan and assumed the office of the CMLA. On the same day, he issued the Laws (Continuance in
Force) Order 1977, (hereinafter referred to the CMLA Order 1 of 1977). The imposition.of the Martial
Law was impugae41 Begum Nusrat Bhutto before the Supreme Court through a petition under
Article 184 of the Constitution which was decided on 10-11-1977, of whkh the judgment is reported in
PLD 1977 SC 657. In the concluding portion of the judgment He Supreme Court summarised the final
position, which emerged for the reasons recorded therein in the following terms:—
(/) That the legal character and validity of any abrupt political change, brought about in a manner not
contemplated by the pre-existing Constitution or Legal Order, cannot be judged by the sole criterion of
its success or effectiveness, as contemplated by Kelsen's pore theory of taw. Not only has this theory not been
universally accepted, or applied, it fa also open to serious criticism on the ground that, by making
effectiveness of the political change as the sole condition or criterion of its legality, k excludes from
consideration sociological factors or morality and justice which contribute to the acceptance or effectiveness
of the new Legal Order. The legal consequences of such a change must, therefore, lie determined by a
consideration of the total milieu in which the change i& brought about, including the motivation of those
respoaaSb^e for the change, and the extent to which the old Legal Order is sought te be preserved or
suppressed;
(u) That in any case the theory of revolutionary legality can have no application or relevance to a
situation where the breach of legal continuity is of a purely temporary nature and for a specified Kn^-
4 purpose. Such a phenomenon can more appropriately be described as one of constitutional deviation rather
than of revolution;
(///) That examined in this light, the Proclamotion of Martial Law on, the 5lfc of July, 1977, appears to be an
extra-Constitutional step "^"""ffrat^f H the complete break-down and erosion of the constitutional
and moot authority of the Government of Mr. Z. A, Bhutto, as a restdt of the unprecedented protest
movement launched by the Pakistan Natneaf Affiance against the alleged massive rigging of elections to tbe
National Assembly, held on the 7th of March, 1977. It was a situation for which the Constitution provided no
solution, and the Armed Forces had, therefore, to intervene to save the country from further chaos and
bloodshed; to safeguard its integrity and sovereignty and to separate the warriag factions which had
brought the country to the brink of disaster;
(iv) That the imposition of Martial Law, therefore, stands validated OB the doctrine of necessity, and the
Chief Martial Law Administrator is entitled to perform all such acts and promulgate all legislative
measures have been consistently recognised by judicial authorities as falling' the scope of the law of necessity,
(v) That it has also become clear from a review of the events • culmination of Martial Law, and the
declaration of intent Chief Martial Law Administrator, that the 1973 Constitution the supreme law, subject to
the condition that certain parts been held in abeyance on account of State necessity; and the Pakistan as well
as the Superior Courts continue to function Constitution. In other words, this is not a case where the old has
been completely suppressed or destroyed, but merely a case of -constitutional deviation for a temporary
period and for a specified and limited objective, namely, the restoration of law and order and normalcy in the
country, and the earliest possible holding of free and fair elections for the purposes of the restoration of
democratic institutions under the 1973 Constitution;
(vz) That, accordingly the superior Courts continue to have the power o€ judicial review to judge the
validity of any act or action of the Martial Law Authorities if challenged in the light of the principles
underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution
thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the
contrary contained in any Martial Law Regulation or Order, President Order or Ordinance; and
(vw) That the provisions contained in clause (3) of Article 2 of the ,L*W|* (Continuance in Force) Order,
1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation
prevailing in the country was obviously of such a nature a& to amount to aa Emergency contemplated by
clause (1) of Article 232 of the Constitution* and the right to enforce Fundamental Rights could, therefore,
be legitimately suspended by an order of the kind which could have been made under clause (2) of Article
233 of the Constitution."
It may also be stated that on 28th July 1977, Houses of Parliament Provincial Assemblies (Election)
Order, 1977, was issued (hereinafter referred to,: as the President Order 5 of 1977) for holding elections
of the National and Provincial Assemblies. After that, on 15th September 1978, President Succession Order
No. 13 of 1978, was issued under which upon resignation of Chottdhry e-Illahi, the then Presdient, the General
assumed the office of the President as**' well. On 24th March 1981, the Provisional Constitution Order,
1981 (CMLA Order 1 of 1981), (hereinafter referred to as the PCO) was issued, which inter alia under Article
15 provided protection to all President's Orders and of the CMLA including Orders made amending the
Constitution by the President or the CMLA, Martial Law Regulations, Martial Law Orders and all other laws
made on or after 5th July 1977 and so also to all orders made, proceedings taken and acts doae 6y~ any
authority or by any person after the above date or in future in exercise of the power derived from any
President's Orders or the Chief Martial Law' Administrator, Martial Law Regulation, Martial Law
Orders, enactment, notification, etc. It also barred the jurisdiction of the Court from entertaining any -
proceedings or granting any injunction in respect of the above matters. The effect of the above provision of the
PCO inter alia was considered by the Honourable Supreme Court inter alia in the following cases on the
assumption that the same was valid:— .
t

(/) Abdul Aziz v. Additional Settlement Commissioner, Lahore Divwoik Lahore and Another, reported in
1982 SCMR 372.
(«) Dr. Muhammad Elias Dubash v. Punjab Service Jtrbunal and others, reported in 1982 SCMR 562.

(Hi) The Province of the Punjab and Others v. Syed Muhammad Akr^m Shal^ •*reported in
PLD 1984 SC 409
(iv) Government of Punjab and Others v. Saleem Hussion Gardea, reported Hi 1985 SCMR 443.
It may further be stated that on 1st December, 1984, Referendum Order, i.e. President Order No. 11 of
1984, was issued, under which a referendum was held. The effect of which was to make the General,
the President of Pakistan, for a period of 5 years from the specified event. It may also be mentioned that
P.O. No. 14 of 1985 was issued on 2nd March, 1985 incorporating a number of amendments in the
Constitution. After that in exercise of the power conferred; by Article 4 of above P.O. No. 14 of 1985,
the President appointed 10th day of March, 1985 to be a day on which the provisions of the Constitution
as amended by the said Order were to come into force except Articles 6, 8 to 28 (both inclusive), clause
(2) and (2) (a) of Article 101, Articles 199, 213 to 216 (both inclusive) and Article 270-A. It may also be
stated that on 17th March 1985, President Order No. 20 of 1985 was issued for restoring Article 239
in its original unamended form prior to its amendment by P.O. No. 14 of 1985. It may be pertinent to
mention here' that prior -, * to the issuance of P.O. No. 14 of 1984, elections of the National and
Provincial Assemblies were held on 7th February, 1985 and 9th February, 1985, respectively and of the
Senate on 1st March, 1985. The National Assembly and the Senate had their first joint Session on 23rd
March 1985. After that on 8th September, 1985, a bill containing the Eighth Amendment Act was
introduced in the National Assembly, but it was withdrawn as there was no consensus among the
members of the National Assembly. However, a fresh bill in the amended form was submitted on 30th
September, 1985, which was passed on 16th October, 1985 and 28th October, 1985 by the
National Assembly and the Senate respectively. The President gave his assent to the above bill on
9th November 1985. It was gazetted, on llth Novmber, 1985. It may further be mentioned that on
29th December,^ 1985 MLR-107 was issued by the CMLA inter alia for providing for the
camfc» which were disposed of by the Military Courts or Special Military Courts ap£) which were
pending before them and for providing protection to the Martial Lawg Orders, etc mentioned in the
schedule thereto. The scope and the legality of v^wftr! was examined by the Supreme Court in the case
of Federation of Pakistan Ghutam Mustafa Khar, reported in PLD 1989 SC 26. It may also be stated
i" proclamation for withdrawing of Martial Law was issued by the CMLA on: December, 1985 and on
the same day the Fundamental Rights were restored.
6. Adverting to the contents of the Eighth Amendment, it may be c that it has made amendments in
articles 48, 51, 56, 60, 75, 90, 101, 105, 116 and 130. It omitted clause (2) of Article 144 and Article
152-A. substituted Article 270-A in place of the Article which was incorporated' President Order
No. 14 of 1985. It has also added Vllth Schedule to Constitution providing that the laws
mentioned therein were to be amended tatifef manner provided for amendment of the
Constitution.
The above Amendments through Eighth Amendment can be categorised into three categories,
namely, formal, democratic and controversial. Under the ahqw first category Articles 6(3), 7, 50,
62, 63, 64, 66 and 69 fall, whereia inter alia tte-word 'Majlis-e-Shoora' has been added. The
example of the second category is the 4
amendment in Article 41(3) read with the Second Sechedule to the Constitutions, whereby electoral college for
the Presidential election has been made more representative by including Provincial Assemblies in it and the
amendment m Article 101, wherein the words "after consultation with the Prime Minister" have been
substituted in place of the words, "in his discretion" which were added by P.O. No. 14 of 1985 and prior to
that originally the words employed were that the "Governor was to hold office during the pleasure of the
President" and the third category of.the Amendments can be said to cover Articles about which there
is:n controversy as to the balance of power between the Presdient and the Prime Minister, some of which
have been highlighted by Mr. Yahya Bakhtiar, learned Attorney General in his submissions referred to
hereinbelow.
7. That it has been vehemently contended by the petitioners in C.P. No, D-76/1989 and D-163/1989 and
Mr. Rashid A. Akhund, learned counsel for the petitioner in the third petition that since the General had
committed the breaches of the conditions on which the Supreme court accorded its recognition to the Martial
Law, he had become usurper and that he had no legal backing to rule the country. They have invited our
attention to the fact that he promised to hoH elections within 90 days, then within six months and thereafter he
took about eight years to hold party-less elections. They have also invited pur attention to the fact that Article
212-A was incorporated in October, 1979 in order to deprive the Superior Courts of their power to scrutinize
the acts/actions, orders passed by the Martial Law Authorities and/or by the Martial Law Courts, which was
one of the conditions laid down in the above Begum Nusrat Bhutto's case by the Supreme Court. After that, on
24-3-1981, the PCO was issued which in fact amounted to abrogation of the Constitution. They have further
invited our attention to tlie, factum that so-called Referendum was held on 1-12-1984 under the P.O. No.
11 $ 1984, which in fact was a fraud on the Constitution and the people of Pakistan as the questions were so
framed that no option or choice was given to the people and that the manner of holding the referendum was
also questionable. Mr. Yahya Bakhtiar, learned Attorney General, who appeared in response to the
Court notice, has invited our attention to the interview given by the General published in Kayhan International
Iran of 10th September, 1977, reproduced in the da% newspaper 'Masawat' of 28th September, 1977, wherein
he reiterated his promise to hold elections within 90 days. He has also invited our attention to another
interview given by him to the Time New Delhi Bureau Chief Dean Brelis, after the party-less elections in
1985. He further invited our attention to the atrocities committed by the Martial Law regime. In this
connection, he referred to an article about the hanging of Abdul Hamid Baluch published in Sunday Times of
iTtii January, 1982, a report of International Commission of Jurists on Pakistan Human Rights after
Martial Law, and his own article on Human Rights and the Constitution of 1985, published in The Frontier
Post of 30th June, 1987. On the basis of the above documents, it was urged by him that factually from the
very inception, the General had no intention to fulfil his commitment of holding the elections within 90 days,
as his acts and deeds were not in conformity with what he had promised at the time of taking over the power on
5th July, 1977.
There is no doubt that the Supreme Court in the above Begum Nusrat Bhutto's case had accorded
recognition to the Martial Law regime oft, A" conditions contained in the above quoted portion of the
judgment which inter included holding of free and fair elections for the purpose
of democratic institutions under the Constitution at the earliest pos subject to the condition
that the Superior courts would continue to function the Constitution and would have power of
judicial review to check theany act or action of the Martial Law Authorities, if challenged in
the I principles underlying the law of necessity as were set out in the said judgment.lt -
JJ was also made clear that power under Article 199 of the Constitution available to their
full extent which could be exercised by the Superior Cowls j notwithstanding anything to the
contrary contained in any Martial Law Regulation or Order or President Order or Ordinance.
The above conditions were floated inasmuch as first above Artical 212-A was incorporated in
the Constitution en 18- j 10-1979 in order to deprive the Superior Courts of their jurisdiction to
review and to judge the validity of any act or action or order of the Martial Law
Authorities 1 or of any order of Martial Law Courts. This was followed by the PCO
which purported to reinforce the above Article 212-A by providing blanket immunity from the
scurtiny of all the past and present acts/actions, Orders, proceedings of i the Martial Law
Authorities and of the persons acting on their behalf and of the i Martial Law Courts, nor the
Referendum held, by the General was wkhai the | ambit of the above judgment given in the
case of Begum Nusrat Bhutto. On the i basis of the above facts, one could urge that the
position of the General had I become somewhat similar to that of General Yahya Khan upon his
commission of I the breaches of the conditions on which the Supreme Court had accorded
its recognition to his Martial Law regime in the case of Begum Nusrat Bhutto and I that
the ratio deddendi of the judgment in the case of Miss Asma Jilani v. the \ Government of
the Punjab and Another, reported in PLD 1972 SC 139, would tie applicable and the Court
would have to scrutinize all the acts and actions of the Martial Law regime on the touch stone
of the above judgment and the doctrine of necessity.
This might have been the legal position if Article 270-A would not have been enacted by
the Parliament. I may point out that at the time when the above case of Miss Asma Jilani
was decided by the Supreme Court, Article 281 of the I«te>B«> Constitution or Article
268 of the 1973 Constitution was not enacted. The reason for incorporation of the above
Articles in the Interim Constitution of 1972 a&d tihe permanent Constitution of 1973
was to meet the situation which had arisen because of the above judgment of the
Supreme Court in the case of Miss A«na Jilani. The effect of the above Article was
considered inter alia in the case 0f The State v. Ziaur Rahman, reported in PLD 1973
SC 49, the case of The Federation of Pakistan Through the Secretary Establishment Division,
Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others, reported in PLD 1974
SC }£!, the case of Sh. Karamat Ali v. The State, PLD 1976 SC 476, the case
of Fay Foudation v. Shamim-ur-Rahman, PLD 1983 SC 457 and the recent case of
Afiw Benazir Bhutto v. Federation of Pakistan, PLD 1988 SC 416 and it was held .flat the
same was validly made and that it protected the law referred to therein. In tjbe latter case, it has
also been held with reference to Article 270-A, that any Jaw which is violative of the
Fundamental Rights can be struck down on the aforesaid ground after the enforcement of the
same. Since Article 270-A of the Constitution has been held to have been validly enacted by
the Superior Courts in the cases referred to hereinbelow and for the other reasons referred to
in later part of Mis opinion, in may humble view the above controversy has become acadmte
and no useful purpose would be served in going into the same hi detail.

8. (a) In my view, the basic questions which require consideration in the instant case, are:-
(i) Whether the elections held on non-party basis in 1985 were valid?
(«') Whether the Parliament had the power to pass the Eighth Amendment ? and
(HI) Whether any of the provisions of the Constitution, which have been incorporated by virtue of any
Presidential Order or by Eighth Amendment, can be struck down on the ground of being violative to the
Objectives Resolution or of the basic structure of the Constitution?
(b) It was vehemently urged by the petitioners in the first two petitions and the learned counsel for the
petitioner in the third petition and so also by Mr. Yahya Bakhtiar, learned Attorney General, who appeared
on Court notice as observed hereinabove and Mr. S. A Wadood, learned Deputy Attorney General for the
Federation, that party-less elections were violative of the Constitution and, therefore, the Parliament and the
Provincial Assemblies which came into existence because of 1985 party-less elections had no legal status. It
was further urged by them that the Constitution envisages the West Minister form Parliament/Government, of
which pre-requisite is the party system. In this regard, they have heavily relied upon the certain portions of the
opinion delivered by Shafiur Rahman, J, in the case of Federation of Pakistan and others v. Haji Muhammad
Saifullah KJian and others, reported in PLD 1989 SC 166, by which a judgment of a Full Bench of the Lahore
High Court was maintained in which it was declared that the dissolution of the National Assembly by the
President was without lawful authority. Shafiur Rahman, J. in his opinion, while declining the prayer for
restoration of the dissolved National Assembly, observed, "that the restoration of a National Assembly and
Provincial Assemblies which were brought into the existence by materially departing from the essential features
of our own Constitutional set up cannot be allowed to take place." His lordship has also quoted the
observations made by the Hon'able Chief Justice of Pakistan and by the other learned Judges as to the
importance of the party system in a parliamentary form of Government, in the case of Miss Benazir
Bhutto v. Federation of Pakistan and another, reported in PLD 1988 SC 416. It may be advantageous to
reproduce the above observations quoted from the case of Miss Benazir Bhutto :-
"(i) "Our Constitution is of the pattern of Parliamentary democracy with a Cabinet system based on party
system as essentially it is composed of the representatives of a party which is in majority It is a party
system that converts the results of a Parliamentary election into a Government." (Muhammad Haleem, CJ.)
(ii) "It provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs
and governings of Pakistan through political activity relating thereto." ( MA.Zullah. J.)
(iii) "Persons elected to the legislature in their personal capacities have hardly any importance. They just toss
around on the political scene, rudderless and wihtout a destination. It is only when they band themselves into a
group, as a party, that they become a force exercising some influence by their activities . It is only as
members of a political party and not as
individual members of the legislature; can they achieve their objectives." (Nasim Hasan Shah, J.)
(iv) "The right to form, and be member of, a political party, is an indispensable political tool
for the effective use of the process of a democratic Government. Besides, the right is vital for the
maintenance of other democratic rights like the right to practice one's profession etc. It is often said that
Government by public opinion involves the right to create
and organise opinion with a view to influence the conduct of Government, or to bring about a
change in the Government." ( Abdul Kadir Shaikh, J.)
(v) It is conceded on all hands and is so recognized in the Constitution that Islam confers on the people the
right to choose the persons who shall govern them. To deny them the right to organize themselves for
choosing such persons is to negate and destroy that right itself." Shafiur Rahman, J-)
(vi) "The expression 'political justice ' is very significant and it has been placed in the category of
fundamental rights. Political Parties have become a subject-matter of a fundamental right in consonance
with the said provision in the Objectives Resolution. Even othesrwise, speaking broadly our Constitution is a
Federal Constitution based on the model of Parliamentary form of representative Government prevalent in
United Kingdom. It is also clear from the Objectives Resolution that principles of democracy as
enunciated by Islam are to be fully observed. True and fair elections and the existence of political parties, is
an essential adjunct of a functional democratic system of Government." ( Zaffar Hussain Mirza,J.)."
After quoting the above observations from the case of Miss Benzair Bhutto, ! Shafiur Rahman, J. further
observed that, "It will be clear from the foregoing observations that Partyless elections are not in consonance
with the Scheme of our Constitution and when this Court is possessed of a discretion, or a choice whether to
revive, restore, or perpetuate by'resusciating such Assemblies, the Court vnfl stand for
constitutionalism rather than departures and deviations from it and refuse to restore them."
(c) On the other hand, Messrs S.M. Zafar and Ali Ahmad Fazeel have submitted that from the
above qouted observations, it cannot be inferred that the Supreme Court has held that Assemblies which came
into existence on account of so-called partyless elections of 1985 were not legal. They have pointed
out that the very fact that the Supreme Court had maintained the judgment of the Lahore Hight Court
declaring the dissolution of the National Assembly as illegal on the contrary manifests that the Lahore High
Court and the Supreme Court proceeded on the assumption that the above Assemblies were lawfully
constituted. They have also submitted that Article 17 of the Constitution which guarantees freedom
of association was not operative in February or March, 1985 when the elections of |the
National and Provincial Assemblies and the Senate had taken place and, therefore there had not been any
violation of the above Article. They have further submitted that Article 51 of the Constitution does not
provide any condition that the National Assembly was to be elected on party basis but it contemplates
that the members to be elected by direct and free votes in accordance with law and since at the
relevant time the law contemplated election on non-party basis, there was no violation of any law. Mr. S.
M. Zafar, has referred to the cases of :-
(i) Alain Sher and Others v. Tlie State and others reported in PLD 1966 (W.P.) Peshawar
19,
(ii) Chowdhury Tanvir Ahmad Siddiky and others v. The Province of East Pakistan and
others, reported in PLD 1968 SC 185, and
(iii) Keshavan Madhava Menon v. Hie State of Bombay, reported in AIR (38) J1951 SC 128,
in support of his further contention that the Fundamental Rights cannot be enforced
retrospectively. Mr. Ali Ahmad Fazeel, in addition to placing of reliance on the above cited
cases, has further relied upon the cases of -
(i) Lachamandas Kewalram and others v. State of Bombay, reported in AIR 1952 SC 235; relevant
at pages 237 and 238;
(ii) Shree Meenakshi Mills Ltd, Madurai and others v. A v. Visvanatha Sastri and
another, reported in AIR 1955 SC 13; relevant at page 18;
(iii) Mrs. Habiba Jilani v. Federation of Pakistan Tlirough the Secretary, Ministry of Interior,
Government of Pakistan, Islamabad, reported in PLD 1974 Lahore 153, relevant at page 168;
and
(iv) Gulzar Hasan, Advocate and 8 others v. Islamic Republic of Pakistan Tlirough Secretary,
Ministry of Interior and Kashmir Affairs, States of Frontier, Government of Pakistan
Islamabad and 3 others, reported in PLD 1975 Lahore 219, relevant at page 1229.
The ratio of the above cases inter alia seems to be that the laws or the past and closed
actions/transactions cannot be declared as void retrospectively prior to the date of the
enforcement of fundamental rights. In the instant case the elections were held under the
Houses of Parliament and Provincial Assemblies (Election) Order,1977 (President Order No.5
of 1977) which was issued on 28th July, 1977, by the CMLA within the promised period of 90
days within which the elections were to be held, though it was subsequently amended.
(d) The two petitioners in first two petitions and the learned counsel for the petitioner in
C. P. No. D-168/1989, were unable to point out any provision of law which was in force in
February or March, 1985.which enjoined the holding of elections on party basis. However, Mr.
Yahya Bakhtiar, learned Attorney General, has invited our attention to the Objectives
Resolution which inter alia provides that the State shall exercise its power and authority
thorugh the chosen representatives of the people and that the principles of democracy,
freedom, equality, tolerance and social justice as enunciated by Islam shall be
fully observed. He has also invited our attention to the speeches of the father of nation, Quaid-
e-Azam Muhammad Ali Jinnah, particularly delivered by him on 26th March, 1948 at the
public reception at Chittagong and of 14th June, 1948 addressed by him-to the Officers of
the Staff College, Quetta. In the former, he highlighted the type of the Government which
Pakistan would have by observing that the Pakistan should be based on sure foundation of social
justice and Islamic Socialism which emphasize equality and brotherhood of men and in the
latter speech the father of nation reminded the Army Officers the Oath which they had taken for
allegiance to the Constitution and for faithfully and honestly serving* Pakistan. He has also invited
our attention to the Allama Muhammad Iqbal's book "The Reconstruction of Religious Thought In
Islam" and 'The Process of Islamic Revolution" by Sayyid Abulala Muadudi. In the former,
Allama Muhammad Iqbal emphasized the importance of 'Ijtihad' and pointed out that in Turkey in
place of 'Khilafat' vesting in a single person was vested in a body of persons or an elected assembly in
the following words :--
"Let us now see how the Grand National Assembly has exercised this power of Ijtihad in regard to the
institution of Khilafat. According to Sunni Law, the appointment of an Imam or Khalifah is
absolutely indispensable. The first question that arises in this-connexion is this— Should the Caliphate be
vested in a single person ? Turkey's Ijtihad is that according to the spirit of Islam the Caliphate or Imamate
can be vested in a body of persons, or an elected Assembly. The religious doctors of Islam in Egypt and
India, as far as I know, have not yet expressed themselves on this point. Personally, I believe the Turkish
view is perfectly sound.
Whereas, Sayyid Abulala Maududi in his aforesaid work has exhaustively dealt with the topic "What is meant
by the Islamic State and whether it is an Ideological State in contrast to a Secular State" and inter alia observed
as follows :-
"The structure that rises on the foundation of this ideology is, from foot to top, in every detail, essentially
different from that which is the manifestation of a Secular State. It demands its builders a peculiar sort
of mentality, a particular type of character, a special kind of behaviour. Its army, police, judiciary, finances,
taxes, administrative policy, foreign diplomacy, problems of peace and war, in short, everything is
sharply demarcated from that of the Secular States."
Mr. Yahya Bakhtiar has also pointed out that Pakistan was achieved because of a political party, namely,
Muslim League and, therefore, without political parties the elections of the Assemblies and the Senate were
in fact contrary to the basic concept of Pakistan besides being violative of the Objectives Resolution and of the
Constitution. He and also the two petitioners in the first two petitions and the learned counsel for the
petitioner in the third petition, further pointed out that the so called elections of 1985 were held when political
activities were banned under MLR 48 and most of the political parties boycotted the elections and, therefore,
no credibility or legal status can be accorded to the Assemblies which came into existence because of such
partyless elections. Mr. Yahya Bakhtiar also invited our attention to the fact that in the general elections of
1988 many political stalwarts lost their seats though they were elected in partyless elections of 1985.
(e)At this juncture, it may be pertinent to point out that Mr. Khalid M. Ishaque has referred to the
following publications in support of his submission that there has been re-thinking even in the western
countries about the efficacy of political parties:-

(a) The Party Symbol, Reading's on Political Parties, Edited by William Crotty, Northwestern
University.
(b) Elections And Party Management, Politics in the time of Disraeli and Gladstone, by H.J.
Hanham, Dean of the School of Humanities and Social Science Massachusetts Institute of
Technology.
(c) Citizens, Parties and the State, a reappraisal by Alan Ware.
(d) Party Renewal: The Need For Intellectual Leadership by James MacGregor Burns.
In the above publications, the Authors have tried to point out defects in the working of party system.
Mr. Obaidur Rehman, appearing for the intervenor, has also referred to a book named Parliament by Sir
Ivor Jennings, 1970 Publication, Second Edition, wherein the Author has referred to the real difference
between the Britain and Dictatorship countries by observing that :-
"The real difference between Britain and the dictatorship countries is that with us there is not one faction
seeking to maintain itself in power by persuasion, fraud or force, but at least two factions each trying to
achieve and maintain power by persuasion. These factions are based on different views of the national
interest, and each appeals to public opinion to uphold its policy. To a substantial degree these different
views are dependent on personal and economic motives: yet each seeks to appeal to the people as a whole.
The Conservative party believes that it can persuade the great mass of the people that State controlled
private capitalism produces the optimum benefit, the Labour party believes that that benefit would best be
obtained by State capitalism or socialism. These are, however, the differences of principle, and in their
application to immediate and pressing problems they differ only in emphasis. They are no greater than the
differences that separated Tories and Whigs or Conservatives and Liberals during the last century.
Naturallly the organised capitalist groups are on the one side and the organised workers groups on the other.
In my view, it is not necessary to enter into above theortical controversy in presence of the observations of the
Supreme Court made in the case of Miss Benazir Bhutto v. Federation of Pakistan & others referred to
hereinbelow as to the efficacy and the importance of the political parties in a parliamentary form
of c Government. I cannot on the basis of above publication hold that the political parties have no part to play.
The question whether the elections of 1985 can be declared as illegal or void on the ground they were held on
non-party basis is a different issue.
(f) I am inclined to hold that it is too late to declare that the National and* Provincial Assemblies, which
came into existence as a result of partyless elections,, in 1985 had no legal status or that they were illegal
bodies, for the reasons urged ID by Mr. Yahya Bakhtiar or by the two petitioners in the first two petitions and
the learned counsel for the petitioner in the third petition. Though the elections of 1985 to the Parliament
were held on non-party basis, but the important part played by it cannot be denied as it was instrumental
in getting the Martial Law lifted. In this regard, it may be pertinent to reproduce hereinbelow the break up of
the percentage of the votes cast in 1970, 1985 and 1988 general elections for the National and Provincial
Assemblies, which figures have been furnished by the Pakistan Election Commission in Pursuance of the Court
order dated 8-10-1989:-

Year Percentage of valid votes to Percentage of total votes polled to registered

of Election registered votes National Assembl votes
s y Provincial National Provincial
Assembly Assembly Assembly

1. 2. 3. 4. 5.
1970 57.96% 52.77% 59.87% 53.54%
1985 51.90% 56.12% 56.12% 57.37%
1988 42.33% 42.69% 43.00% 43.20%

The percentage of votes for the National Assembly in the year 1970 seems to be higher than of 1985. The
elections of 1970 were held when erstwhile East Pakistan was a part of Pakistan. The comparison of the
percentage of votes cast in 1985 and 1988 elections indicates that for the National Assembly percentage
of the total votes cast out of registered votes was about 10 percent more as compared to 1988 and of the
Provincial Assembly about 14% more than of 1988 elections.
However, Mr. Yahya Bakhtiar has submitted that the reason for the low percentage of the total votes cast in
1988 elections was mainly on account of the requirement to produce indentity cards. On the other hand, the
reason for the higher percentage of the turn out of 1985 general elections could be that the people wanted
to get rid of Martial Law as there was apparently no other course open to them.
(g) In my view the very fact that the Supreme Court maintained the judgment of the Lahore High Court
for declaring that the dissolution of the National Assembly as without jurisdiction indicates that the legal
status of the National Assembly was not doubted though it came into existence on the basis of the partyless
elections. However, it has been submitted that the Supreme Court had left the question of legality of the
National Assembly open while dealing with Article 270-A of the Constitution in the above case of Federation
of Pakistan and Another v. Malik Ghulam Mustafa Kliar, reported in PLD 1989 SC 26 relevant at page 44, by
observing as follows:--
"16. During the course of hearing of these matters, Mr. Abdul Mujib Pirzada, who appeared for the petitioner
in C.P.S.LA. No. 429-K of 1981, raised the plea that the Parliament was not competent to enact Article 270-
A, but then all the learned counsel agreed to keep this aspect of the matter out of consideration for the
time being and thus no elaborate arguments were addressed on this plea. I would therefore refrain
from expressing any view on it."
I may point out that in the above quoted para of the judgment. Mr. Mujib Pirzada had not thrown challenge to
the status of the Parliament as legally constituted; body but had thrown challenge to its competency to enact
Article 270-A. In this regard, it may be stated that further observations of the Hon'able Supreme Court I in the
very judgment contained in paras 18 and 19 are pertinent, which indicate'
that the Supreme Court proceeded on the assumption that Article 270-A was validly enacted. It may be
advantageous to reproduce the same, which read as under:-
"18. The first limb of the argument of the learned Attorney General was that clause (1) of Article 270-A gave
blanket protection to all laws made during the period when the Martial law was in force and that
the validation extended by the said clause encompassed not only their past operation but also their future
continuance, despite any other provision to the contrary contained in the Constitution, further, the said clause
ousted the jurisdiction of all Courts including the Superior Courts from examining the validity of the said
laws on any ground whatsoever. He also contended that the intent of the clause was not confined to only
removing doubts about the competency of the law-maker but also conferred validity on the contents of the laws
themselves.
19. So far as the question relating to the validity of the laws and the competency of the makers thereof is
concerned, there can be no quarrel with the proposition convassed by the learned Attorney General. By
declaring that all laws, brought on the statute book during the period of the Martial Law, had been made
validly and by a competent authority, and, further by adopting and firming the same the intention of
the Parliament clearly was to obviate all possible objections with regard to their validity or the competency of
the makers thereof and save them from challenge in Courts on these grounds. Neither the Sind High Court nor
the Lahore High Court took a contrary view on this part of the learned Attorney General's argument. But
then in the matters before us we are not concerned with the validity of the said laws or the competency of the
makers thereof~or for that matter, with their future operation after the revival of the Constitution. These
questions were raised and dealt with in another judgment of this Court which has been reported as Benazir
Bhutto y. Federation of Pakistan (PLD 1988 SC 416). On the other hand, the issue before us is of a limited
nature, that is, whether at all, and if so, to what extent the acts, actions and proceedings done, taken or held
while the Martial Law was in force, can be reviewed by the Superior Courts in exercise of the Constitutional
jurisdiction after the lifting of the Martial Law and the revival of the Constitution."
(h) I may also observe that in the case of Miss Benazir Bhutto, all the learned counsel including Mr. Yahya
Bakhtiar then appearing as the Chief Counsel for the petitioner and the Supreme Court proceeded on the
assumption that Article 270-A was enacted by a competent legislature. In this regard, it may be pertinent
to quote the following observations from the opinions of the Hon'ble Mohammad Haleem, CJ. and of
Nasim Hasan Shah, J.:-
"Mohammad Haleem, C J. The further argument of the learned Attorney General is that the validation also
cures the violation of the Fundamental Rights or any other constitutional norm not only in the past
operation of such laws but also in their future continuance "notwithstanding anything contained in the
Constitution." In support of this contention he relied firstly, on the non obstante expression
"notwithstanding anything contained in the Constitution." and secondly, in the absence of the
words "subject to the Constitution" in sub-Article (3) of Article 270-A by comparison of these words
existing in sub-Article (1) of Article 280 of the Interim Constitution and sub-Article (1) of Article 268 of
the 1973 Constitution. This brings me to the consideration of the scope of what is validated in the context
of the principle of validation or curing defects in the laws. During the specified period, the Constitution
was in abeyance and so were the Fundamental Rights. Therefore, the power to enact the legal measures
which was derived from the proclamation of the fifty day of July, 1977, and the Laws (Continuance in
Force) Order was without any limitation as to the subject of legislation. There was no occasion, however,
for any conflict of the legal measures in the state of things then existing with any constitutional norm.
The constitutional validity given by Article 270-A (1) is retrospective as it achieves to give validity to laws
enacted between a specified period. This validity is, therefore, of a pattern of a curative or validating
statute and must be understood and be operative in that context."
Nasim Hasan Shah, J. According to the learned Attorney General, the effect of sub-Article (1) of Article
270-A is that not only are the laws made during the period 5th July, 1977 to 30th December, 1985
alongwith their contents deemed to have been competently made and enacted but also that the
jurisdiction of all Courts has been taken away to question the validity of the said laws on any ground
"whatsoever". This blanket validation and complete immunity to any scrutiny thereof is further reinforced
by the provisions of sub-Article (3) of Article 270^-A, which saves their future operation and renders them
immune from scrutiny in the like manner.
On the other hand, according to Mr. Yahya Bakhtiar what has been saved from all challenge by the
provisions of Art. 270-A is the entertainment of any plea to the effect that the laws made during this
period were not made by a competent authority and the liability to be struck down on that ground. In any
case, the jurisdiction of the Courts to see whether such a law, in its future continuance, constitutes a
violation of any of the Fundamental Rights, which have now been restored is not ousted."
Reference may also be made to the two Full Bench cases of this Court comprising of the then learned
Chief Justice and four learned Judges in the case of Nazar Muhammad Khan v. Pakistan and 2
others, reported in PLD 1986 Karachi 516, and the case of Muhammad Bachal Memon v. Government of
Bind Through Secretary Department of Food and 2 others, reported in PLD 1987

19.
Lastly, there was no constraint on the Parliament to give validity to any legislative instrument
whatever may be the defects. While considering the validity of legal measures and protection given to
themunder Article 181 (1) of the Interim Constitution which as already stated, is similar aS-Article
270-A of the Constitution, the Chief Justice in the case of Fouji Foundation clearly laid down at page
584 that there was no constraint on the constituent assembly to give validity to any legislative
instrument whatever might have been the defect.
!• am therefore, of the opinion that vires of Article 270-A of the Constitution cannot be
questioned under Article 199 thereof on th& aforesaid ground."
The same view found favour with a full Bench of Lahore High Court in the case of* Malik Ghulam Mustafa Khar
And Others v. Pakistan And Others, reported in PLD 1988 Lahore 49=PLJ 1987 Lahore 669. It may be
pertinent to reproduce paragraphs 34-A and 34-B from the opinion of Mohammad Afzal Lone, J.,
which read as follows:-
34-A. A corollary of these arguments, is another submission made by Mr. Raza Kazim, that when the
Parliament enacted Article 270-A, it was not a sovereign body as the Martial Law was in force then, Article
270-A was subject to will of the Chief Martial Law Administrator who qua the Constitution and the National
Assembly was not under any compulsion to issue or not to issue the proclamation of withdrawal of Martial
Law. In these circumstances according to the learned counsel, Parliament lacked competence to amend the
Constitution.
34-B. The objection has political assumption rather than a legal significance. However, examining it from a
purely legal point of view, it is noteworthy that Revival of Constitution Order, 1985,was enforced with effect
from 20th March, 1985. Under Article 3 of the R.C.O. the first joint meeting«l the National Assembly and
the Senate, was held, as stated in the preceding paragraph on 23-3-1985 and the Parliament stood
installed. Powers having been once granted to the Parliament could not be taken away unless the RCO was
annulled or the Parliament dissolved by the President under Article 91 of the Constitution. Further under
our Constitution, sovereignty belongs to God Almighty, which he has delegated to the State of Pakistan
through its people. The Parliament is the representative of the people. Within the frame work of the
concept that legal sovereignty rests in God Almighty, enshrined in our Constitution, it is only a limited
authority which is exercised by the Parliament. In this sense there is no room for attributing the
western concept of sovereignty to the Parliament. We may also quote here, the instance of enacting of the
Interim Constitution during Martial iaw. What transpired between the Parliament acting through the
Prime Minister and the Chief Martial Law Administrator is a political question, not subject to judicial scrutiny.
Article 270-A, therefore, cannot be struck down on the assumption that the Parliament was not sovereign."
I may point out that the above Sind High Court judgment with the addition that the ground of malafide can be
pressed into service for challenging the acts/actions/orders of the Martial Law Authorities was upheld,
whereas the above Lahore judgment was upheld hi toto. In presence of the above judicial pronouncements of
the Superior Courts, in my opinion, it is not open to this Court to hold that the Parliament was not legally
constituted. The contention of Mr. .Nasim Faruqui in this regard seems to be correct.
I am point out that there is a marked distinction between refusal to exercise i discretion in favour of
restoration of a dissolved Assembly, after having held its dissolution as illegal under Article 199 of the
Constitution and to give a declaration under the above Article that an assembly was illegal, the court
cannot 'give such a declaration unless violation of a provision of law is shown, which in the instant case is
missing. In my view Mr. Sabihuddin's contention that there was no constitutional deviation involved in holding
of elections on non-party basis in 1985 as the same were held under President Order NO. 5 of 1977 which
allowed such lections,seems to be correct. Additionally the effect of holding that Article 270-A was
competently incorporated would be that P.O.No.5 of 1977 and other laws pertaining to elections including
elections upto the date of enforcement of the Fundamental Rights are protected.
9. I may also observe that even otherwise, the competency of the members of the National Assembly is
protected by the doctrine of de facto. The latter doctrine I intend to deal more in detail in latter part of this
opinion. However, for the time being, it will suffice to quote hereinbelow form the judgment in the case of Lt.
Col. Farzand All and others v. Province of West Pakistan through the Secretary, Department of Agriculture,
Government of West Pakistan, Lahore, reported in PLD 1970 SC 98, relevant at page 125, which reads as
under :-"There is, however, yet another principle which can be invoked in aid for holding that hi such collateral
proceedings the acts of de facto members cannot be invalidated but must be treated as being equivalent to or
as good as the acts of de jure members. This principle was first enunciated in the case of Edwin ward Scadding v.
Louis Lorant (10 ER 164) where the House of Lords after consulting all the Judges came to the
conclusion that a rate for the relief of the Poor which was lawfully made in other respects, could not be
rendered invalid by the circumstance that some of the vestrymen who concurred in making it, were
vestrymen only de facto, and not de jure.
Colley in his book on Constitutional Limitations Eighth Edition, Volume 2, page 1357 says as follows :-
"No one is under obh'gation to recognize or respect the acts of an intruder, and for all legal purposes they are
absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public
business and in security of private rights, the acts of officers de are not facto suffered to be questioned because
of the want of legal authority except by some direct proceeding instituted

for the purpose by the State or by some one claiming the office de jure, or except when the
person himself attempts to build up some right, or claim some privilege or emolument, by
eason of being the officer which he claims to be. In all other cases the acts of an officer de
facto are as valid and effectual, while he is suffered to retain tfce office, as though he were an
officer by right, and the same legal consequences will flow from them for the protection of
the public and of third parties. This is an important principle, which finds concise
expression in the legal maxim that the acts of officers de facto cannot be questioned
collaterally."
An officer de facto is defined by Colley in his book on Constitutional Limitations, Vol.2, page 1355 as
"one who by some colour of rigjht is in possession of an office and for the tune being performs its duties
with, public acquiscence, though having no right in fact." An intruder is defined in the same book at p. 1357
as "one who attempts to perform the duties of an office without authority of law and without the support of
public acquiescence."
Upon these principles it has been strenuously argued by the learned Attorney-General that the Third,
Fourth and the Sixty Constitutional Amendments are not unassailable, because, at any rate, the allegedly
disqualified respondents had acted as de facto members, for, they had acted under the bona fide belief
that they were entitled to so act and had at least a fan* colour of title and they have also performed their
duties with public acquiescence."
10. (a) Before taking up the question, whether any provision of the Constitution can be struck down on
the ground of being violative of Objectives Resolution and of the basic structure of the Constitution, I
may take up some of the other contentions raised by the petitioners and their counsel relating to
the validity of the Eighth Amendment.
First I may deal with the contention of Mr. Muzaffarul Haq that since the CMLA at the relevant time had the
power to amend the Constitution, the Parliament was not competent to pass the Eighth Amendment and
that a delegatee cannot further delegate his power. The above contention seems to be devoid of any force.
According to Mr. Muzaffarul Haq himself the Supreme Court had accorded recognition to the Martial Law
regime on the conditions contained in Begum Nusrat Bhutto's case referred to hereinabove. One of the
conditions was that the CMLA was to restore democratic institutions. The exercise of J •. legislative power
by the Parliament which was even envisaged by the Constitution cannot be said to be without jurisdiction. The
Eighth Amendment was not only passed by the Parliament but it was also assented by the General who was
acting in dual capacity as the President and the CMLA. Similarly, the contention of Mr. Muzaffarul Haq that
the Eighth Amendment is colourable exercise of legislative power has no force as in Fouji Foundation case
(PLD 1983 SC 45?), the Hon"ble Supreme Court has held that mala fide cannot be attributed to the legislature.
(b) This leads me to take up Mr. Rasheed A. Akhund's contention that upon the issuance of P.O. No. 14 of
1985, which came into force on 2nd March, 1985, the General had ceased to have any power to
amend the Constitution and, therefore, President Order No. 20 of 1985 issued on 17th March, 1985
purporting to restore original Article 239, was of no legal effect, it may be stated that by President Order
No. 14 of 1985 (which was gazetted on 2nd March, 1985), Article 239 of the Constitution was amended
as to make it obligatory to get every proposed amendment in the Constitution passed by the Provincial
Assemblies as well. The above amendment was withdrawn by President Order No. 20 of 1985, which was
gazetted on 17-3-1985, whereby Article 239, was restored in the form in which it was prior to the issuance of
President Order No. 14 of 1985. The above submission of Mr. Rasheed A. Akhund seems to be based on
the assumption that upon the issuance of President Order No. 14 of 1985, the General ceased to act-as the
CMLA, which contention seems to be untenable, as admittedly on 30th December, 1985, the General
revoked the declaration of Martial La^ of 5th July, 1977 in the capacity of the CMLA. One day prior to
that, i.e on 29th December, 1985, the CMLA issued MLR-107, the validity of which has been upheld in
the case of Federation of Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26). If I were to accept
Mr. Rasheed A. Akhund's contention, in that event, it will have to be concluded that the General had no
power on 30th December, 1985 to revoke the declaration of Martial Law of 5th July, 1977. The above
discussion also disposes of Mr. Rasheed A. Akhund's further contention that since the
Eighth Amendment was not referred the Provincial Assemblies,' the same was not competently passed.
(c) As regards the contention that the General was not competent to give his assent to the Eight
Amendment, as he was not duly elected President, it may be observed that even if I were to assume
that the above contention has some force, it would not make any difference, as admittedly the
General was acting as a de facto President. I have already referred to hereinabove to the case
of Lt.-Col. Farzand All and others v. Province of West Pakistan through the
Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98) in
relation to the legality of the National Assembly, wherein de facto doctrine has been dilated upon by
the Supreme Court of Pakistan. In addition to the above cited case, I may also refer to the case
of Gokaraju Rangaraju v. State ofAndhra Pradesh, reported in AIR 1981 SC 1473, case of Abdul
Salam Qureshi and another v. Judge, Special Court of Banking for Sind, and another, reported in
P1D 1984 Karachi 462 and unreported case of Atlas Autos Ltd v. Nirc and others (Writ Petition
No. D-852 of 1983) decided on 4-5-1989 by a Division bench of this Court. In the first case, the
appointment of a Sessions Judge was declared as invalid being in violation of Article 233 of the
Indian constitution. The order/ judgment passed by him was impugned, in that context the Indian
Supreme Court while dismissing an appeal against the judgment of the High Court of
Andhra Pradesh inter aha observed that "the de facto doctrine is now well established that the acts of
the officers de facto performed by them within the scope of then-assumed official authority, La the
interest of the public or third person and not for their own benefit, are generally held as valid and
binding as if they were the acts of officers de jure.1' In the second case, the appointment of the
Judge, Special Court of Banking for Sind was impugned through a constitutional petition.
A Division Bench of this Court has dealt exhaustively with the de facto doctrine and referred to
Colby's Constitution Limitation, Eighth Edition, Second Volume, page 1357, the aforesaid
Farzand Ali's Supreme Court case, the case ofMUward v. Thatcher (1787) 2 TR 81, the case
of Scadding v. Lorant (1851) 3 HLC 418, the case of State v. Gardner (given in the book, namely,
cases on Constitutional Law by Me Convey & Howard, (p.102) and the case of Norton v. Shelby
County (1886) 118 US 425, and held that in view of the preponderance of judicial view on
the fk facto doctrine, the objection to appointment of the Judge, Special Court of Banking for
Sind was not sustainable as it had not affected the validity of the order and the judgment passed by
him. In the third case, which has been recently decided by a Division bench of this Court, to which
I am a party, the de facto doctrine was relied upon with reference to the alleged irregularity ia
the appointments of the Chairman and the Members of the NIRC.
(d) I may also point out that the Supreme Court in the above case of . Federation of
Pakistan v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) has dealt with the question of President's assent to
the Eighth Amendment bill in some what different context in paragraph 15 of the judgment and has held that
the President while giving assent to the bill was acting in the manner as envisaged by the Revival of the
Constitution Order which had the sanction of the Provisional Constitutional order itself.
I am, therefore, of the view that any alleged irregularity in the assumption of the office of the President by the
General would not render his official act, of giving assent to the Eighth Amendment BUI illegal but would be
protected by the doctrine of de facto. Secondly the challenge to the alleged irregularity in the assumption of
the office by the President cannot be thrown through a collateral proceedings after several years or by what is
called a side wind.
(e) In this regard reference may be made to para 23 from the opinion Aftab Hussain, J., in the case
of Ghulam Jilani v. Tlie Province of Punjab, 1979 Lahore 583, which reads as follows:--

"Their Lordships did not disagree with Farzand Ali's case. Proceeded to decide the matter on merits to give
an authoritative pronouncement as to the true meaning and scope of Article 216 of the Constitution. Neither
in that case nor in the case of Abrar Hussain the dictum laid down in Farzand Ali's case was reversed or even
modified In this Court Farzand Ali's case is, therefore, an authority for so long as the view in the case is not
reversed or modified, we are bound by it. There is, therefore, no doubt that the finding that the petitioner
could oat challenge by a side wind or in collateral proceedings the appointment of the president is
unexceptionable."
(jf) It has ako been contended that there was difference between the Parliament which framed the
Interim Constitution of 1972 and the permanent Constitution of 1973 and the Parliament which came into
existence as a result tjf 1985 partyless elections inasmuch as the former was to act as a
constituent assembly, whereas the latter was not to act as such. In furtherance of the
above submission M/s Abdul Mujeeb Pirzada and Rasheed A. Akhund have relied upon the case of Miss
Benazir Bhutto v. Federation of Pakistan and another (PLD SC 416), relevant at page 514, in which,
Muhammad Haleem, CJ, has following observation:-
"One important distinction while applying the observations in the _ Fauji Foundation should be kept in
mind and, that is, that it was National Assembly which as the Constituent body enacted the
Interim Constitution of 1972 and the 1973 Constitution. The observations at page 593 were made in the context
of this distinction as it was in the exercise of the constituent power that the Constitution was enacted which is
not the case here as the amendments in the Constitution were made and so was it revived (President's Order 14
of 1985) in the exercise of the powers derived from the proclamation of the Fifth day of July, 1977 and the
Laws (Continuance in Force) Order, therefore, the validity has to be construed in the context of the content of
the power exercised and the languae of the indemnity clause enacted by the Legislature (Majlis-e-Shopra)
in exercise of the derivative power subject to the limitation imposed by the prescribed procedure. This was
essentially a revival of the old order and not the creation of a new order."
The above quoted observation supports the submission of M/s Abdul Mujeeb Pirzada and Rasheed A.
Akhund but it does not affect the view which I am inclined to take. In the instant case, the Eighth Amendment
bill was passed by the National Assembly and the Senate as per procedure provided under the Constitution
for its amendment. M/s Abdul Mujeeb Pirzada and Rasheed A. Akhund were unable to point out that there
was any sustainable irregularity in the procedure adopted by the National Assembly and the Senate. I may also
point out that in 1970, the general elections were held in the whole of Pakistan, which included erstwhile
East Pakistan. After the fall of Dacca about half of the members of the National Assembly ceased to have
any connection with Pakistan. The remaining members of the National Assembly had become the members
of National Assembly for Pakistan. The power to frame the Constitution was derived by the National Assembly
of 1970 under the Legal Frame Work Order issued by General Yahya Khan, who was declared as a usurper in
Asma Jilani's case by the Supreme Court.
(g) Then it was also contended that the Eighth Amendment had been brought about by force and
coercion by the Chief of Army Staff at the time when the Martial Law was still in force. In this regard, Mr. S.
M. Zafar has pointed out that the interim Constitution of 1972 was also framed when Pakistan was under the
civilian Martial Law. In my view, the above submission is based on surmises, and conjectures. There is no
material before me on the basis of which I may conclude that the members of the National Assembly and
the Senate were pressurized and that they voted against their wishes. On the other hand, the admitted facts
are that originally Eighth Amendment bill was introduced in the National Assembly on 8th September, 1985
which was not accepted/by the members of the National Assembly and, therefore, it was withdrawn. After
that, an amended bill was re-introduced on 30th September, 1985. According to Mr. S. M. Zafar, 164 members
of the National Assembly against the total strength of 207 cast their votes in favour of the bill and none voted
against it and in Senate 74 Senators cast their votes in favour, out of the total strength of 87 and none
voted against it. In my view, it is not necessary to examine the above question any further.
(/») Adverting to Mr. S. A. Waddod, learned Dy. Attorney General's submission that the amendments
were made in the Constitution for the benefit of an individual and, therefore, the same cannot be sustained, it
may be observed that after having held that the Parliament, which came into existence as a result of 1985, was
legal, I cannot go into the above question, as it was for the members of the National Assembly and the Senate
to have examined the effect of the amendments. 11. (a) Having held that the National and Provincial
Assemblies, which came into existence as a result of 1985 non-party general elections were legal,
further; question arises as to whether the amendments, which have been incorporated* ifii the Constitution by
the Eighth Amendment, are violative of the Objectives Resolution or of the basic structure of the
Constitution or of any other accepted rule of amendment of the Constitution. I may observe that Mr. Yahya
Bakhtiar, learned Attorney General has candidly submitted that this Court cannot strike down the entire
Eighth Amendment in one stroke in the above cases but when a challenge is thrown to a particular amendment
of the Constitution on the grounds urged by him, the Court would be competent to strike down that
particular provision. More or less the same sta^nd was taken by Mr. SA. Wadood, learned ty~ Attorney
General appearing for the Federation when he submitted that this Court cannot rewrite the Constitution and
that the general prayer for striking down Eighth Amendment, contained hi C.P. No. D- 163/1989 cannot be
granted Messrs Abdul Mujeeb Pirzada and Muzaffarul Haq's stand was that the entire Eighth Amendment is
liable to be struck down, whereas Mr. Rasheed A. Akhund's submission was that excluding Article 2-A, the
rest of the Eighth Amendment is to be struck down. According to Mr. Abdul Mujeeb Pirzada, our Constitution
has following basic structure:-
(1) That the Constitution is supreme like other Constitutions;
(2) Parliamentary form of Government;
(3) Islamic character of the Constitution;
 (4) Trichotomy of power;
(5) Federal character of the Constitution; and
(6) Unabridged Fundamental Rights.
(&) According to M/s Yahya Bakhtiar, Abdul Mujeeb Pirzada and Rasheed A. Akhund, some of the
amendments made in the Constitution were intended to change the Parliamentary form of Government into a
Presidential form. Mr. Yahya bakhtiar, Learned Attorney General has taken us through the
various amendments made in certain articles of the Constitution referred to hereinbelow in sub-para (c) in
order to demonstrate that factually by the said amendments, the Objectives Resolution and the basic structure
of the Constitution have been violated. Mr. S. A. Wadood, learned Deputy Attorney General appearing for the
Federation to re-enforce the above argument, has submitted that there are certain restrictions which are built in,
in the system of a Constitution which do not permit amendment, of certain provisions of the Constitution.
According to him those built in restrictions prohibit amendment of the essential features of
the Constitution, some of the articles in the Constitution themselves provided mode of the amendment as to
make it difficult to amend the same. He also pointed out that mandate from the party, public opinion,
international law, consultation with the organised interests are some of the other constraints which do not
permit amendment of a Constitution freely.
On the other hand, M/s S. M. Zafar, Ali Ahmed Fazeel, Khalid M. Ishaque, Naseem Faruqi have
submitted that the preponderance of judicial view at present obtaining in Pakistan is that a Court cannot strike
down a Constitutional provision on the ground that it is violative of the Objectives Resolution or of the
basic structure of the Constitution. They have further submitted that the question what
should be the balance of power inter se between the President and the Prime Minister is a highly politicised
issue, which is not suitable for adjudication by this Court in a constitutional petition and the forum for resolving
such an issue is the Parliament or the people. Mr. S. M. Zafar has also invited our attention to the fact that
the father of the nation, Quaid-e-Azam Mohammad Ali Jinnah was the Head of the Executive being the
Governor General and was also the Chairman of the Constituent Assembly which was entrusted with the
task to draft a Constitution for Pakistan under the Indian Independence Act, 1947 and that it was also acting as
the legislature for enacting other laws. He further pointed out that Justice Shahabuddin's Law Commission
on the form of Government recommended Presidential form for Pakistan. He has also submitted that
1956 Constitution contemplated a Parliamentary form of Government, then 1962 Constitution envisaged a
Presidential form of Governmeat, then -1073^
Constitution, as originally stood, made the President totally ineffective. On the basis of his above submissions
he urged that there was no specific form of Government permanently adopted in Pakistan. ,
Mr. Ali Ahmed Fazeel has invited our attention to the fact that under Article 199 of the Constitution, the
jurisdiction of this Court is subject to the Constitution, whereas there is no such qualification under Article
226 of the Indian Constitution. He has further invited our attention to Article 175 of the Constitution
which makes it clear that no Court shall have any jurisdiction save as is or may be conferred on it by the
Constitution or by or under any law and, therefore, according to him in presence of the above
provisions of the Constitution this court cannot strike down any Constitutional provision on the ground of
being violative of the Objectives Resolution or of the basic structure or of any other accepted rule of the
amendment of the Constitution.
(c) Mr. Yahya Bakhtiar, learned Attorney General then has taken us through some of the amendments made in
the Constitution, which, according to him, are violative of the Objectives Resolution and of basic structure of
the Constitution, namely.
(/) He has invited our attention to clauses (5) and (6) which have been added by Eighth Amendment to
Article 239, which provides the procedure as to the amendment of the Constitution. Clause (5) provides that
no amendment in the Constitution shall be called in question in any Court on any ground whatsoever, whereas
clause(6) lays down that for removal of doubt it is hereby declared that there is no limitation whatsoever
on the power of Majlis-e-Shoora (Parliament) to amend airy of the provisions of the Constitution. According
to Mr. Yahya Bakhtiar the above clauses cannot stand with the Objectives Resolution and Article 270-A.

(ii) Clause (2) of Article 58 gives discretion to the President to dissolve the National Assembly for the two
reasons given in its sub-clauses (1) and (b). According to Mr. Yahya Bakhtiar this discretionary power given
to the President under this Article is subject to mis-use as it has made the will of the people subordinate to
one individual. It may be observed that the above clause has been subject matter of a decision of the
Supreme Court in the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Klian and
others, reported in PLD 1989 SC 166.
(iif) Clause 1-A of Article 242 of the Constitution, which has been incorporated by President Order No.
14 of 1985 and which provides that the Chairman oT the Public Service Commission constituted in relation
to the affairs of the Federation, shall be appointed by the President in his discretion. According to Mr. Yahya
Bakhtiar, the above discretionary power given to the President puts the selection of the bureaucracy under the
control of the President.
(/v) Article 48, in which the phraseology of clause (1) has been changed and a new proviso to above clause
(1) has been added providing that the President may require the Cabinet or as the case may be, the
Prune Minister to re-consider advice, either generally or otherwise and the President shall act in accordance
with the advice tendered after such reconsideration. Mr. Yahya Bakhtiar, learned Attorney General has
submitted that there was no need for incorporating the above clause which may cause obstruction in the
working of the elected Government.
(v) Clause (2) of Article 91 provides that-"The President shall in his discretion appoint from amongst
the members of the National Assembly a Prime Minister who, in his opinion, is most likely to command the
confidence of thf majority of the members of the National Assembly."
It has been contended by Mr. Yahya Bakhtiar that though this provision will be ineffective after 20th March,
1990 but it was violative of the concept of parliamentary form of Government as the President could nominate
anyone as a Prime Minister.
(v/) Clause (5) to Article 91 empowering the President to ask the Prime Minister to obtain Vote of
Confidence has been incorporated by the Eighth Amendment but to the same no objection was convassed by
Mr. Yahya Bakhtiar at the bar.
(v») As regards clause (8) to Article 91 which empowers the President to appoint any person as the Prime
Minister or a Minister after the dissolution of the Assembly, it has been contended by the learned
Attorney General that the above clause is in fact contrary to the well established practice of a Parliamentary
form of Government which contemplates that a sitting Prune Minister is to continue till fresh
elections are held and it is also in conflict with the spirit of Article 94 of the Constitution which provides that
the President may ask the Prime Minister to continue to hold office until his successor enters upon
the office of the Prune Minister. He further submitted that the above clause

(8) was misused in May, 1988 when no Prime Minister was appointed after the dissolution of the Assembly
and in the provinces only Mr. Nawaz Sharif was allowed to continue, whereas the other three Chief Ministers
were not allowed to continue to hold on the office of the Chief Ministership.
(vi'n) He also invited our attention to corresponding amendments made in the relevant Articles of the
Constitution relating to Governor, Provincial Assembly—and Provincial Cabinet.
There is no doubt that the above amendments highlighted by Mr. Yahya Bakhtiar have to some extent affected
balance of power inter se between the President and the Prime Minister but the moot point remains, whether
this Court is competent to take upon itself exercise on the question which of the amended articles should be
struck down and which of the amended articles should be retained or should it be left to be resolved by the
Parliament or the people. It cannot be denied that the above controversy is a sensitive political issue
and generally the Court declines to entangle itself into sensitive political issues in exercise of its constitutional
jurisdiction. This aspect I intend to deal more in detail later on. Additionally, if this Court has no jurisdiction
to strike down a constitutional provision on the ground of its being violative of the Objectives Resolution or of
the basic structure of the Constitution, the question, whether the .Court can adjudicate upon sensitive political
issues loses its significance.
(d) Mr. yahya Bakhtiar, Learned Attorney General has also referred to the following cases:-
(i) MissAsma Jilani.v. Ttie Government of the Punjab and Another, reported in PLD 1972 SC 139, in which
General Yahya was declared as a usurper and while dealing with the question of grund-norm, Hambodur-
Rehman CJ, made the following observations^-
"In any event, if a grund-norm is necessary for us I do not have to look to the Western legal theorists to
discover one. Our own grund-norm is enshrined in our own doctrine that the legal sovereignty over the entire
universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits
prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in
the Objectives Resolution passed by the Constituent Assembly of Pakistan on the 7th of March, 1949. This
Resolution has been described by Mr. Brohi as the "corner stone of Pakistan's legal edifice" and recognised
even by the learned Attorney-General himself "as the bond which binds the nation" and as a document from
which the Constitution of Pakistan "must draw its inspiration." This has not been abrogated by any one so far,
nor has this been departed or deviated from by any regime, military or Civil. Indeed, it cannot be, for, it is
one of the fundamental principles enshrined in the Holy Qur'an
Say, 'O Allah, Lord of sovereignty. Thou givest sovereignty to whomsoever Thou pleasest; and Thou takest
away sovereignty from whomsoever Thou pleasest. Thou exaltest whomsoever Thou pleasest and Thou
abasest whomsoever Thou pleasest. (Pt. 3, Ch. 3, Al'Imran,Ay27.)".
(H) Mr. Fazlul Quader Chowdhiy And Others v. Mr. Muhammad Abdul Haque, PLD 1963 SC 486. In the
above case the facts were that the 3 appellants were the members of the Central Council of Ministers, who took
oath of office shortly after promulgation of President Order No. 34 of 1962 under Article 224 of the 1962
Constitution. The above Order had the effect of amending seven Articles of the Constitution. Article 25
was altered so as to give the right of speaking in and otherwise participating in the proceedings of the National
Assembly to a member of the President's Council of Ministers, who was not a member of the Assembly
though such a person was not entitled to vote. Articles 75, 103 and 104 were also amended. The above
amendments were made by the then President in purported exercise of the power conferred on him under
above Article 224 for removal of difficulties which might have been encountered in enforcement of the
aforesaid Constitution. The erstwhile High Court of East Pakistan took the view that the above amendments
made by the President were ultra vires. On appeal filed by the 3 affected Ministers, the Supreme Court
maintained the judgment of the High Court and Cornelius CJ inter alia observed as follows:--The major
duty upon all concerned including the President was to bring these fundamental provisions into operation.
What has actually be done is that instead of implementing these basic provisions, they have been altered in
a fundamental way so as to change the form of Government from the pure Presidential form to an anomalous
Parliamentary form. It is quite impossible to regard the operation as one in aid of bringing the integral
provisions of the Constitution into operation."
(Hi) Mir Abdul Baqi Baloch v. Jam Mir Ghulam Qadir KJtan ofLasbella & Five others, NLR 1980 Civil (Kar)
673, in which a Full Bench of the erstwhile High Court of Sind and Baluchistan while dismissing a
petition challenging the appointment of Jam Mir Ghulam Qadir Khan of Lasbella as the Chief Minister of
Baluchistan inter alia dilated upon the rule of interpretation of Constitutional provisions by observing as
follows:-- " The Interim Constitution, as indeed any legislative instrument, must I think be so construed as to
give effect to all parts of it and to reconcile the provisions with one another and there can be no question of
choosing between the provisions unless indeed there is such absolute conflict between two provisions that
upon no reasonable interpretation can they both be given effect to. It is unnecessary just now to quote the
entire Article 136 but clause(l) therefore may usefully be reproduced."
Whereas Mr. S. A. Wadood, learned Deputy Attorney General has referred to the following books and
cases:-
(/) Diaz Jurisprudence, Fourth Edition inter alia at page 128, which reads as follows:-
"....................... A written constitution provides probably the most effective of all checks on legislative power,
but its success depends on a number of factors. One of the most important is the language in which
the limitations are expressed; whether in fairly specific terms or in generalities open to divergent
interpretation. Secondly, the safeguards may be effectively cancelled by countervailing provisions elsewhere in
the document. Thirdly, if the constitution can be easily amended, a restraint which the government finds
irksome will not impose quite such a curb as when the procedure for amendment is complex and elaborate.
Fourthly, every constitution has to be interpreted, so the effectiveness of its restraints rests ultimately on the
interpreters, i.e., the judges and the measure of their sympathy with an independence of government. An
interesting case is Golak Nath v. State of Punjab, in which the Supreme Court of India declared that the
Indian Parliament was incapable of amending the constitution so as to abridge or remove fundamental rights.
A contrary effect is that, while a constitution may limit legislative power, it may thereby prevent government
from dealing with the abuse of liberty which could be as undesirable as the abuse of power."
(H) Rousseau on the Social Contract at page 198, which provides as follows:—
" From which it becomes clear that the sovereign power, albeit absolute, sacrosanct, and inviolable,
does not, and cannot, trespass beyond the limits laid down by general agreement, and that every man has full
title to enjoy whatever of property and freedom is left to him by that agreement. The sovereign is never
entitled to lay a heavier burden on any one of its subjects than on others, for, should it do so, the matter would
at once become particular rather than general, and,consequently, the sovereign power would no longer
be competent to deal with it."
(Hi) Harold J. Laski at pages 55 and 56, which reads as follows:--
"....We here verge upon the political nature of sovereignty. What, fundamentally, is involved in the question of
whether there ought to be, in any State, a power subject to no limits of any kind. But it is first necessary to
remember that unlimited power is nowhere existent. Attention has always to be paid to the thousand varying
influences which go to shape the nature of the sovereign will. Here we are in the realm rather of fact than of
theory; and the attempt to trace out the sources of any single decision would lead most to declare, as John
Chipman Gray insisted, that the real rulers of a society are undiscoverable. A realistic analysis would
probably content itself with saying that the will of the State is, for practical purposes, the will which determines
the boundaries within which other wills must live. The will of the State, in fact, is the will of government as that
will is accepted by the citizens over whom it rules."
(/v) O. Hood Phillips' Constitutional and Administrative Law, Sixth Edition at page 57, which reads as
follows:--'
" There are in practice, of course, factors which limit Parliament's ability to pass any laws it likes, or,
rather, which limit the choice of measures that the government puts before Parliament for approval. These
factors are the concern of the political scientist rather than the student of constitutional law, but it is
convenient to mention some of the more important ones briefly here."
The author after making the above observations has dilated upon the restrictions referred to by him,
namely, the mandate, or party manifesto, public opinion, consultation of organised interests and international
law.
(v) Sharaf Faridi and 3 others v. Tlie Federation of Islamic Republic of Pakistan through Prime Minister
of Pakistan and another, PLD 1989 Karachi 404, at page 446, wherein Saleem Akhtar J. has referred to
the legislative power with reference to Article 8 of the Constitution and has pointed out the observation of
the Supreme Court in the case of Benazir Bhutto as to the manner in which the Constitution restricts the
legislature and executive from encroaching upon and violating the fundamental rights.
(vi) Mac Cormick v. Lord Advocate, (1953 S.C. 396, (1953) S.L.T. 255-Scot, in which case Lord President
while dealing with the question of violation of the treaty of the union between the Scotland and England
ratified by Act 1706 by a legislation passed by the British Parliament observed:—
"....................... the principle of the unlimited sovereignty of Parliament was a distinctively English
principle, having no counterpart in the constitutional law of Scotland, and that the united
Parliament established by the Treaty of Union did not have unlimited sovereignty in the matter of altering
the provisions of the Treaty."
(VH) Federation of Pakistan and another v. Malik Ghulam Mustafa KJiar, PLD 1989 SC 26, the detailed
reference to which has already been made hereinabove.
(e) As observed hereinabove according to M/s S. M. Zafar, Khalid M.-Q Ishaque, A. A. Fazeel and
Nasim Faruqui none of the provisions of the Constitution can be struck down on the ground of being
violative of Objectives Resolution or of basic structure or of some political concept. M/s S. M. Zafar and , A.
A. Fazeel have referred to the following cases:--
(/) Tlie State v. Zia-Ur-Rahman and others, PLD 1973 SC 49, in which Hamoodur Rehman CJ explained
his observation made in the aforesaid Asma Jilani case quoted hereinabove and relied upon by Mr.
Yahya Bakhtiar as to the status of the Objectives Resolution in the following words:--
"....................... It will be observed that this does not say that the Objectives Resolution is the grund
norm, but that the grund norm is the doctrine of legal sovereignty accepted by the people of Pakistan and the
consequences that flow from it. I did not describe the Objectives Resolution as "the cornerstone of Pakistan's
legal edifice" but merely pointed out that one of the learned counsel appealing in the case had described it as
such. It is not correct, therefore, to say that I had held it, as Justice Ataullah Sajjad has said in his judgment,
"to be a transcendental part of the Constitution" or, as Justice Muhammad Afzal Zullah has said, to be a
"supra-Constitutional Instrument which is unalterable and immutable".
His Lordship also pointed out in the other part of the judgment that the judiciary has no power to strike
down a provision of the Constitution on the ground of its being violative of the laws of God or nature
or of morality or of some other solemn declaration in the following words:--
"....Having said this much about the constitutional position of the Courts and their relationship with the
other equally important organ of the State, namely; the Legislature, it is now necessary to examine as to
whether any document other than the Constitution itself can be given a similar or higher status or whether
the judiciary can, in the exercise of its judicial power strike down any provision of the Constitution itself
either, because, it is in conflict with the laws of God or of nature or of morality or some other solemn
declaration which the people themselves may have adopted for indicating the form of Government they
wish to be established. I for my part cannot conceive of a situation, in which, after a formal
written Constitution has been lawfully adopted by a competent body and has been generally accepted by the
people including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its
provisions ultra vires or void. This will be no part of its function of interpretation. Therefore, in my view,
however solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a
part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will
not have the power to declare any provision of the constitution itself as being in violation of such a
document."
(if) Tlie Federation of Pakistan Tlirough the Secretary, Establishment Division, Government of Pakistan
Rawalpindi v. Saeed Ahmad Klian and others, PLD 1974 Sc 151, in which the Honourable Supreme
Court reiterated that a constitutional provision cannot be struck down.
(wi) Islamic Republic of Pakistan Tlirough Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul
Wali Klian, M.AL4. Former President of Defunct National Awami Party, PLD 1976 SC 57. In the above
case Supreme Court referred to some cases of Indian jurisdiction, namely, the case of Golak Nath v. State of
Punjab, AIR 1967 SC 1943, the case of Kesavanauda v. State of Kerala, AIR 1973 SC 1461, the case
of Shankari Prasad v. Union of India, AIR 1951 SC 458 and the case of Sajjan Singh v. State of
Rajasthan, AIR 1965 SC 845, in which the Indian Supreme Court has dealt with the power of the Indian
Parliament as to amend or. to abridge any of the fundamental rights. Original view of the Indian Supreme
Court inter alia in the above case of.Shankari Prasad v. Union of India and Sajjan Singh v. Stale of
Rajasthan was that the parliament could make any amendment in the Constitution but in above Golak
Nath v. State of Punjab case the Indian Supreme Court held that no amendment in the Fundamental Rights
could be made by the Parliament. The latter view was modified in the case of Kesavanauda v. State of
Kerala by holding that reasonable abridgements of fundamental rights can be effected in the public
interest. Hamoodur Rahman, CJ after having referred to the above cases of Indian jurisdiction made
following observations:--
"...................... but it is unnecessary for us to enter into this controversy, as this Court is committed to the view
that "the judiciary cannot declare any provision of the Constitution to be invalid or repugnant" to that national
aspirations of the people and the validity of a Constitutional amendment can only be challenged if it is adopted
in a manner different to that prescribed by the Constitution or is passed by a lesser number of votes than those
specified in the Constitution", vide State v. Ziaur Rahman (PLD 1973 SC 49)."
(iv) Brig. (Retd) F. B. All and Another v. Jlie State, PLD 1975 SC 507. In the above case Hamoodur Rahman
CJ inter alia observed that "The Courts cannot strike down a law on any such higher ethical notions nor
can Courts act on the basis of philosophical concepts of law as pointed by me in the case of Asma Jilani (PLD
1972 SC 139)."
(v) Federation of Pakistan through The Secretary, Ministry of Finance; Government of Pakistan, Islamabad
etc. v. United Sugar Mills Ltd-, Karachi, PLD 1977 SC 397, wherein at page 410 Muhammad Gul J,
whtf delivered the opinion on behalf of the Supreme Court, observed as follows:--
"....................... In Pakistan, this Court in the case of Ziaur Rahman (PLD 1973 SC 49) has however firmly
laid down the principle that a constitutional provision cannot be challenged on the ground of being repurgnant
to what were sometimes stated as "notional inspirations" or an "abstract concept" so long as the provision is
passed by the competent Legislature in accordance with the procedure laid down by the Constitution or a
supra constitutional instrument. In the instant case, the two amendments are not questioned for want
of competency or any other formal defect."
(v/) Fajui Foundation and Another v. Shamimur Rehman, PLD 1983 SC 457. In the above case Muhammad
Haleem CJ after, referring to the Indian cases in which certain amendments of the Constitution were held to
be violative of basic structure reiterated the Supreme Court dictum in Ziaur Rahman's case by quoting "That a
constitutional provision cannot be challenged on the ground of being repugnant to what are
sometimes stated as "notional aspirations" or an "abstract concept" so long as the provision is passed by the
competent Legislature in accordance with the procedure laid down by the constitution or a supra-
constitutional instrument."
(v//) Kliawaja Muhammad Sharif v. Federation of Pakistan Through Secretary Cabinet Division, Government of
Pakistan, Islamabad and 18 others, PLD 1988 Lahore 725, in which a Full Bench of the Lahore High
Court observed that "Thus the Scope of sub-clause (b) of clause (2) of Article 58 cannot be enlarged by any
ratio of rule similar to the "basic structure" theory, as pronounced in India. Even otherwise, this theory has not
been accepted by the Supreme Court of Pakistan in Faiqi Foundation's case (PLD 1983 SC 457)."
(viii) Sharaf Faridi and 3 others v. TJie Federation of Islamic Republic of Pakistan through Prime Minister of
Pakistan and another, reported in PLD 1989 Karachi 404. In the above case a Full Bench of this
Court comprising of myself and six other learned Judges after referring to some of the above cases of
the Indian Supreme Court has held that a constitutional provision cannot be struck down on the ground of
being violative of the basic structure or of the frame-work of the Constitution.
review of the above cited cases indicates that Miss Asma Jilani's case relied upon by Mr. Yahya Bakhtiar was
explained by Hamoodur Rahman, CJ, in the case of Ziaur Rahman, where it has been held that "however
solemn or sacrosanct document, if it is not incorporated in the Constitution or does not form a part thereof, it
cannot control the Constitution. At any rate, the Court created under the Constitution will not have the ower to
declare any provision of the Constitution itself as being in violation of such a document", the above view
was reiterated by the Supreme Court in the case of Saeed Ahmed Khan. The above question agian came up
for consideration before the Supreme Court in the reference case of Abdul Wali Khan, wherein, in strong
words Hamoodur Rahman, CJ, observed that, "the judiciary cannot declare any provision of the Constitution to
be invalid or repugnant to that national aspirations of the people and the validity of a constitutional
amendment can only be challenged if it is adopted in a manner different to that prescribed by the
Constitution". After that, in the case of Brig. (Retd.) F. B. Ali and another, Hamoodur Rahman, CJ,
again reiterated his previous view and observed that, "the Court cannot strike down a law on any such higher
"ethical notions" nor can Court act on the basis of "philosophical concepts of law." This was followed in the
case of United Sugar Mills, in which Mohammad Gul, J., while delivering the opinion on behalf of the Supreme
Court observed that, "a constitutional provision cannot be challenged on the ground of being repugnant to
what are some times stated as "national aspirations" or "an abstract concept". Then again in the case of Fauji
Foundation, Mohammad Haleem, CJ, reiterated the dictum of Ziaur Rahman's case that, "a constitutional
provision cannot be challenged on the ground of being repugnant to what are some times stated as notional
aspirations or an abstract concept". The above Supreme Court cases have been followed by a Full Bench of
the Lahore High Court in the above case of Khawaja Mohammad Sharif and by a Full Bench of 7 Judges of
this Court in the recent case of Sharaf Faridi. It is, therefore, evident that the consistent view of the Pakistan
Supreme Court has been that a constitutional provision cannot be struck down on a ground other than that it
was passed hi a manner other than provided under the Constitution. The case of Fazlul Quader Chowdhry
relied upon by Mr. Yahya Bakhtiar does not lay down any contrary proposition of law than what has been held
by the Supreme Court in the aforesaid subsequent cases. The question in the above Fazlul
Quader Chowdhry's case was, whether the President under Article 224 of 1962 Constitution, which
empowered him to remove difficulties with the object to enforce the provisions of the aforesaid Constitution of
1962, was entitled to amend the Constitution as to change the Presidential form of the Government
into Parliamentary from. It is, therefore, obvious that the above case is distinguishable, i
The books relied upon by Mr. SA. Wadood, namely, Dias Jurisprudence, Rousseau on the Social
Contract, Harold J. Laski's Treatise, O. Hood Philips' Constitutional Law & Administrative Law to some
extent support his contention that a Parliament or any other legislative body is subject to some build
in constraints contained in the Constitution or founded on Conventions or practice as to its power to amend a
constitution. The above bopks contain personal views of their Authors. However, the same cannot nullify
the effect of the • pronouncements of the Pakistan Supreme Court contained in the above cited cases. I may
also observe that the natural corollary of holding that Aricle 270-A has been competently enacted would be
that it would provide protective cover to the assailed constitutional amendments.
I am, therefore, of the view that in presence of the above unambiguous} dictums of the Pakistan
Supreme Court, it is not open to this Court to hold that al provision of the Constitution can be struck down
on the ground of its beingl violative of the Objectives Resolution or of the national aspirations or of higherj
ethical notions or of philosophical concepts of law or of the basic structure.
Additionally jurisdiction of this Court under Article 199 read with Article 175(2) of the Constitution is
subject to the Constitution and not unfettered jurisdiction as to entitle it to strike down a provision of
Constitution on a ground other than highlighted by the Supreme Court in the above discussed
cases. Reference may also be made to the case of Mian Jamal Shah v. The Mem Election Commission,
Government of Pakistan, Lahore and 2 others, PLD 1966 1 at 25-E arid to the aforesaid cases of the Supreme
Court, namely, Lt.-Cot. Farzand Ali, United Sugar Mills and of the Fauji Foundation as to the effect -of the
expression "subject to Constitution".
12. (a) Before taking up the remaining submissions, which have been urged for and against the above
petitions, I may first deal with the submissions relating to the Senate, as in first and third petitions, namely,
C.P. Nos, D-76/1989 and D- 168/1989, inter alia a direction is sought for fresh election of the Sanate. la
this regard, I may point out that in the unamended constitution the total seats m the Senate were 63 under
Article 59 which were increased by P.O. No. 14 of 1985 to 87. The break up of the previous seats and the
present seats are as follows:-
Previous Present 14 members to be elected by the
members of each of the four Provincial Assemblies 56 56 To be elected by
the members
from Federally administered tribal areas in the National Assembly 5 8 To be elected from the
Federal Capital in such a manner as the President may by order prescribe 2 3
Five to be elected by the members of each Provincial Assembly to represent Ulema, technocrates and
other . professionals 0 20 The other amendment, which was introduced by President Order 14 of
1985, was to its term, in clause 3 of Article 59 the unamended period was four years. This has been extended
to six years. Under the unamended clause, half of the members were to retire after every two years which has
now been extended to three years because of the extension of the term. The above amendments are protected
under Article 270-A of the Constitution. However, it has been contended that the increase in the number of
seats of the Senate and its life were not warranted by law. It has also been submitted that he Senate cannot
extend its own life. On the other hand, it was urged by Mr. S.M. Zafar that the increase ia the number of seats
in the Senate has made it more representative and that Ike extension of the term of the Senate from four
years to six years is also in consonance with the other Constitutions of some of the countries of the world
like Austria, India, Japan, Netherland, USA, Fiji, Republic of Vietnam, etc.
Mr. Ali Ahmed Fazeel, in support of the above amendment, has invited ®ur attention to the history of the
British Parliament, which is called as the mother of the parliamentary form of government. He pointed out that
under the Meeting of the Parliament Act, 1694, die maximum period of the Parliament was three years, which
was repealed by Septinial Act, 1715, providing the continuation of the Parliament for seven years term. This was
reduced to five years by the Parliament Act, 1911.
Since on the basis of the Supreme Court cases and of the High Courts referred to hereinabove, I
have held that this Court cannot, strike down any

amended provision of the Constitution on any ground other than that the same has been made in a manner
different to the prescribed by the Constitution, it must follow that no exception can be taken to the above
amendment. I am also inclined to subscribe to Mr. Sabihuddin's submission that increase in the number of
seats of the Senate and extension of its term from four years to six years do not change the basic structure of
the Constitution.
(b) The other ground of attack was that since the present National Assembly has come into existence as a
result of party basis elections of 1988, the present Senate cannot continue to operate as it was elected on non-
party basis. Since I have held that the elections for the National and Povincial Assemblies on non-party basis
in 1985 were in accordance with law then in force as Article 17 of the Constitution was under suspension,
natural corollary of the above conclusion would be that no exception can be taken to the factum that the
present Senate was elected by the assemblies which were elected on non-party basis.
13.(a) M/s. S.M. Zafar, Ali Ahmed Fazeel and Obaidur Rahman have invited our attention to clause 3 of Article
59 of the Constituion, which inter aBa provides that the Senate shall not be subject to dissolution and have
contended that if this Court would grant the prayers contained in the aforesaid two petitions, it would be
violative of the above clause 3 of Article 59. Mr. S. M. Zafar has referred to the definition of the word
"dissolution" given in Oxford Dictionary, volume 3, New Comprehensive International Dictionary of the
English Language, Encyclopeadic Edition, Black's Law Dictionary, 5th Edition, Ballentintf's Law Dictionary,
third, adition, and Corpus Juris Secundum, volume 27, whereas, Mr .Obaidur Rahman has referred to the
definition of the word "dissolution" given in Legal Thesaurus Regular Edition. In all the dictionaries, the
meanings given are more or less same, and therefore, it will suffice to reproduce the definition given in the
New Comprehensive International Dictionary, which reads as follows:-
"1. The act or state of dissolving; disintegration. 2. Chem. Decomposition; separation into elements or
component. 3. Liquefaction. A. Separation; breaking up, as of an assembly or corporation, or of a
partnership, in accordance with the articles of co-partnership, or by the death or incompetence of a partner,
or by the decree of a court. 5. Death, the separation of soul and body.'
No doubt, if, I were to give declaration that the present Senate has not been legally constituted and if I
were to order its fresh election on party basis, it will amount to dissolution of the present Senate, which is
prohibited by the above clause 3 of Article 59 of the constitution.
(b) MrAA. Fazeel has also raised two additional pleas in regard to the Senate, namely, that the petitioners
in C.P.Nos. D-76/1989 and D-168/1989 have no loucs standi to challenge the legality of the Senate on the
ground that they wanted to be a candidate for the Senate and that the two petitions suffer from laches. page
488. In the first case, a Division Bench of the Dacca High Court inter afia held that, the prospective right of
franchise of the petitioner is not enforceable by invoking the extraordinary writ jurisdiction of the High Court,
whereas, in the latter case, Muhammad Haleem, CJ, highlighted the distinction between Article 184(3) and
Article 199 of the Constitution as to their respective scope and observed that Article 184(3), which
empowers the Supreme Court to entertain a petition directly in respect of the enforcement of the Fundamental
Rights should be interpreted hi a manner, which may advance the objective for which it has been incorporated.
In my view a distinction is to be made between a' prospective right of franchise which has already been
conferred by the relevant law and prospective right of franchise, which is to be conferred by law to be enacted.
The former right may be enforceable through a constitutional petition if the functionary entrusted to hold
election fails to do so, the latter right cannot be pressed into service through a constitutional petition. I may
also observe that under Article 199 except a writ of habeas corpus petition and a writ of quo warranto, which
can be invoked by any person, the other writs can be prayed for by an aggrieved party, whereas under Article
184(3) there is no requirement that only an aggrieved party can press into service the above provision, but
the Supreme Court can entertain a petition under the above provision at the behest of any person.
(c) Adverting to the question of laches, Mr. AA. Fazeel, has referred to an unreported order dated 12.9.1988
decided by a Division Bench o'f this Court in the case of M.P. Bhandhara v. Federation of Pakistan in C.P. No.
D-893/1988, and the case of New Kisan Transport Co. Ltd., Lyallpurand others v. The Member Board
of Revenue, West Pakistan, Lahore and others, reported in 1968 SCMR 1307. In the above unreported order, a
Division Bench of this Court declined to entertain a constitutional petition challenging the dissolution of the
National Assembly on the ground that it was filed after the lapse of several months at the stage
when preparation for fresh elections were already at a very advance stage. In the. latter case, the Supreme
Court declined a petition for leave against an order of dismissal of a constitutional petition on the ground of
laches by the erstwhile High Court of West Pakistan and it was observed that the ground that the petitioner
was awaiting result of a writ petition filed by a third party was not a sufficient ground. On the other hand, Mr.
Rasheed A. Akhund referred to the case of KJiawaja Muhammad Sharif v. Federation of Pakistan through
Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others, reported in PLD 1988 Lahore
725, relevant portion para 28 at page 763, wherein, Abdul Shakurul Salam, CJ, on the question of laches
as lo filing of a petition against the dissolution of the National Assembly took a contrary view and observed:-
"Yet it is the duty of the Court to see that the Constitution is maintained, obeyed and no act of so magnitude a
nature as dissolution of the National Assembly is carried out except strictly in accordance with
the Constitution."
The above judgment was upheld by the Supreme Court hi the often referred case of Haji Saifullah. In the
instant case the Senate came into existence in March, 1985 and half of its members retired in March, 1988
and in their place new members were elected. The first petition has been filed in April, 1989, in say view,the
petitions suffer from laches. However, a petition, which involves questions 0f*
public importance as to the interpretation of the Constitution, cannot %e ? dismissed on the ground of
laches alone in view of the above judgment of theSupreme Court in the case of Haji Saifullah.
14.(a) This leads to me the last submission, namely that this Court while exercising constitutional
jurisdiction will not enter into political controversy and, that if the petitions will be allowed there will be
far reaching repercussions.
Adverting to the above first question, it may be observed that Mr. S.M. Zafar has referred to a book named,
"Sum and Substance of Constitutional Law, Arvo van Alstyne Kenneth Karst Jules Gerard, third edition".
He has also referred to .* the following cases:-
(i) The Punjab Province v. Malik Khizar Hay at Khan Tiwana, reported PLD 1956 Federal Court 200.
(ii) The State v. Zia-ur-Rahman and others, reported in PLD 1973 SC 49.
(iii) Malik Ghulain Mustafa Khar and others v. Pakistan and others, reported in PLD 1988 Lahore 49=PLJ
1987 Lahore 669.
In the above cited book, the Author has referred to the term "Discretionary Technique" and has explained
it as follows:
"The "Political question" doctrine operates chiefly as a discretionary technique by which the Court can
avoid decision on issues which are regarded as especially unsuitable for
judicial determination. Such unsuitability may arise from (1) a clear constitutional delegation
of authority to some agency of government other than the federal courts to make a final decision on the
question, (2) a lack of judicially manageable legal standards for resolving the issue, or (3) the need for the
courts to respect and give effect to decisions of co-equal branches of the government acting within
the area of their constitutional authority in order to prevent embarrassment, confusion, or frustration of
national policy. In applying these guides to decision, it is apparent that the political question doctrine is
calculated to implement the principle of separation of powers by precluding judicial determination of issues
that could better be decided by some other branch of the government."
In the first case, the Federal Court of Paksitan inter alia observed that the plain. v* duty of Courts is to
ascertain the intention of the legislature and to carry it out ^ irrespective of the consequences that may
ensue to a political party. In the second famous case of Zia-ur-Rahman, Hamoodur Rahman, CJ, inter
alia observed as : follows:-
"The judiciary cannot declare any provision of the Constitution to be invalid or repugnant on the ground
that it goes beyond the mandate given to the Assembly concerned or that it does not fulfil the aspirations
or objectives of the people. The endeavour to do so would amount tQ entering into the political arena
which should be scrupulously avoided by the judiciary. With political decisions or decisions on questions of
policy, the judiciary is not concerned."

In the above third case, whch is of a Full Bench of Lahore High Court, Muhammad Afzal Lone,
J., in his opinion, while relying upon the observation of the Supreme Court of Pakistan in the
above case of Zia-ur-Rahman, held that there is no need to determine as to whether or not
these amendments have the effect of altering fundamental character of the Constitution and
that exercise of constituional power unduly or against the wishes of the people is a
political question which cannot be subjected to judicial review.
(b) Mr. A A. Fazeel, in addition to the above cited cases, has referred to Che following
cases:-
(i) Ktiawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division,
Government of Pakistan, Islamabad and 18 others, reported in PLD 1988 Lahore 725, relevant at
page 798.
(ii) Fauji Foundation and another v. Shamimur Rehaman, reported in PLD 1983 SC 457,
relevant at para 122, page 579.
(iii) Rolla W. Coleman WA. Barron, Claude C. Bradney et el., v. Clarence W. Miller, as
Secretary of the Senate of the State of Kansas, et al *{3ff?lV3L 433), relevant at 454.
(iv) 1983 Harvard Law Review 386 relevant 404-405. (v) 37-Harvard
Law' Review 338 at page 344.
(c) Mr. Nasim Faruqui has also relied upon the above cited case of Rolla
W. Coleman v. Clarence W. Miller (307 U.S. 433) and has also referred to the term "Political
question" defined in Ballentine's Law Dictionary in the following words:-
"A question, the determination of which is a prerogative of the legislative or executive branch of
the government, so as not to be appropriate for judicial inquiry or adjudication. 20 Am J 2d Cts
L 80.
It would be difficult to draw a clear line of demarcation between political and non-political
questions, but among the questions which haw been recognized as political rather than judicial
in nature, none comes more clearly within the former classification than those which involve
the propriety of acts done in the conduct of the foreign nations with oar government. Z. & F.
Assets Realization Corp. v. Hull, 72 App DC 234, 114 F2d464."

(d) Whereas, Mr. Rasheed A. Akhund, has submitted that the above Rolla W. Coleman v. Clarence W.
Miller was overruled in the case of Charles W. Baker V. Joe C. Can. (U.S. Supreme Court Reports 7 L ed 2d
663) relevant at Headnote 19 at page 682. He has also relied upon the case of Federation >ef Pakistan and
others v. Haji Muhammad Saifullah Khan and others, reported » PLD 1989 SC 166, relevant at pages 209 and
211. It is not necessary to refer to Ac various cases cited by Mr. Ali Ahmed Fazeel, but it will suffice to observe
that in the above Fauji Foundation's case in para 122, the above question has beat touched upon by
Muhammad Haleem, CJ, in the following words:-
"122. On principle there is no distinction between an Act and as both are the product of the exercise of
legislative power. leads to the same conflict if it were to be struck down &a the ground i malafides, a
contingency which has been strongly depricated for the aft embracing reasons in the aforementioned
decisioin. In Zia-ur-Refamffli?s case, Hamoodur Rahman, CJ., expressed himself alike at page 77'Qf
tfcej report, "With political decisons or decisions on questions of pofiey, tfe judiciary is not
concerned. Its function is to enforce the Constitution aad to see that the other organs of the State
confine themselves within the limitations prescribed therein."
The cases and the law reviews of the foreign jurisdiction referred to by Mi* A A. Fazeel are in line
with the above quoted observation of the Supreme Court of Pakistan.

I may observe that Mr. Rasheed A. Akhund's contention that the case of ' Rolla W.
Coleman v. Clarence W. Miller was overruled by the case of Charigs JJ5 " Baker V. Joe C. Carr, seems to be
incorrect as there is no such indication in tnej 4 above cited case. According to Mr. Ali Ahmed Fazeel, the
case of Rotta JK Coleman v. Clarence W. Miller in fact was relied upon in a subsequent case aftj 1983
Harvard Law Review 386) to the case relied upon by Mr. Rasheea A. AkhunA
As regards the above case of Federation of Pakistan v. ffaji MithammSaifuUah Khan, it may be
observed that Shafiur Rahman, J., after referring W certain cases of foreign jurisdiction, namely, India and
USA, highlighted certain!provisions of the. Constitution which exclude the jurisdiction of the Court-
l4 examine or to adjudicate upon the matters covered by the said Artdes, Articles 41(6), 48(2), 48(4),
69(1)(2), 236(2), 269(1), 269(2), 270(2), 270(4), 270-A(1), 270-A(2), and 280. In that context his Lordship
made foi observations:-
..
"As all Constitutional questions turn on whether power has bt«p| exceeded or abused, the judicial
process is eminently suited to the ascertainment of relevant facts and the application of the law, or
the Constitution to the facts so ascertained. The jurisdiction of the Court may be excluded by the Constitution
itself and the following are the instances, of such exclusions in our Constitution:-" ,
I may observe that there is a distinction between a political case political question. A political case
may be subject to adjudication by the Court but a sensitive political question may not be subject matter
of adjudication. *** challenge to the Eighth Amendment on the ground that it was not according
to the Constitution is not a political question and, therefore, it can-adjudicated upon though the case
relatng to it may be termed as a political In contrast to it the question, what should be the balance
of power inter between the President and the Prune Minister is a sensitive political question of the
nature which is not suited for adjudication by a Court but can be resolved ^r the Parliament or by the
people.
15.(a) Adverting to the consequences, which may ensue if I were to deplwe? Eighth Amendment
as ultra vires or the Senate is declared as illegal body. Mr, SC M. Zafar, has submitted that the incumbents
of the offices of the President, Prime Minister, Members of the Senate, Chairman and Vice Chairman of
the Sen^e,"- would be affected and also some of the institutions, namely, present National Assembly as
the seats were increased from 200 to 207 and the age of the voters was increased from 18 to 21 years,
the Federal Shariat Court, High Court benches. Mr. Fazeel added the above list by adding Federal
Ministers of State, Advisers, the Chief Ministers of Provinces, Provincial Ministers, additional seats for
women hi the Provincial Assemblies, Chairman Public Service Commission, Joint Chief of Staff, CNC of
the Armed Forces, the Chief Election Commissioner, etc., and on the other hand, Mr. Yahya Bakhtiar,
learned Attorney General submitted that the incumbents of the offices of the President and the
Prime Minister will not be affected by allowing the petitions to the extent submitted by him. Whereas, Mr.
Abdul Mujeeb Pirzada and Mr. Rasheed A. Akhund have submitted that heaven would not fall if the writs
are allowed.
I may observe that the elections of 1988 on party basis were held on the basis of the amended Constitution,
everyone has taken oath including the judges to protect the Constitution as was in force on the day of taking of
oath. The said oath was taken by everyone after the Martial Law was lifted and the Fundamental Rights were
restored. Incidentally I may mention that I and all other sitting judges of this Court were appointed during the
Martial Law and, therefore, the first oath, which we had taken on 1.1.1986 under the Constitution, was of the
amended Constitution. If I were to declare certain amended provisions of the Constitution as violative of the
Objectives Resolution or of the basic structure of the Constitution, it would disturb the basis on which the
present strucutre of the democracy is grounded. It will be difficult to demarcate a line, where to stop.
The present legal edifice is based on the amended Constitution. If we take out some amended provisions, the
superstructure of democracy built on it may collapse. For example, under Article 41(3) read with Second
Schedule to the Constitution electoral college for election of the President has been made more
representative by P.O. No. 14 of 1985 by providing that the Provincial Assemblies will also form part of the
electoral college. If I were to hold the above amendment as illegal, it will affect the incumbent of the office of
the President, which in turn will affect tie incumbent of the office of the Prime Minister as the President has
nominated the Prime Minister under amended Article 91(2). It is true that the Prime Minister had obtained a
vote of confidence but the challenge to the National Assembly can be thrown on the grounds that its seats by
direct and indirect election have been increased and the qualifying age for a voter has been raised from 18
years to 21 years, by P.O. No. 14 of 1985, which deprived right of franchise to a sizeable voters between the
age of 18 to 21 years. A number of other incumbents of other offices and a number of other institutions, who
are not before us, will also be affected. This will be an unending process. In my view, there is no
manageable standard or the objective standard available with this Court to decide, which of the amendments
should be struck down and which of them should be retained. This is highly sensitive and politicized
controversy, which has unfortunately assumed great significance in view of polarized and charged political
climate obtaining in the country. In my view, it is a fit case where this Court should press into service, what
Arvo Van Alstyne Kenneth Karst Jules Gerard in his aforesaid book terms "discretionary Technique".
(&) The object of incorporating Article 270-A in the Constitution was to avert chaos and uncertainty;
which might have ensued if such blanket cover would

not have been provided, which is in line with the previous Articles, namely, 281 in the Interim Constitution and
269 in the 1973 Constitution. The luminary of. our judiciary like Hamoodur Rahman, CJ, inspite of the
Supreme Court judgment in the case of Asma Jilani holding Yahya Khan as usurper did not hold that
the aforesaid Articles 281 and 269 were not competently enacted or that the same had not provided cover to the
laws made by the usurper. In my humble view, it will be appropriate that the questions, which have been raised
in the present petitions, which are highly political in nature, as observed hereinabove, should be resolved by
consensus of the people through the parliament or by other mechanism provided under the Constitution.
If this Court is going to strike down any provision of the Constitution on the grounds urged, it may lead to
disstability, uncertainty and chaos in the country. It would further deteriorate political climate. In my view, it is
not a fit case, in which this Court should press into service its constitutional discretionary jurisdiction.
16. The upshot of the above discussion is that the petitions have no merit and, therefore, they are
dismissed but there will be no order as to costs.
- Before parting with the above discussion, I may record our gratitude for the valuable services rendered
by Mr. Yahya Bakhtiar, learned Attorney General (who has appeared in response to the Court notice), the
learned counsel for the parties and the two petitioners in person. Saiduzzaman Siddiqui, J.--I had the occasion
of reading the judgment of my Lord the Chief Justice in the above cases. While I agree with the conclusion of
my Lord, I would like my own reasons to go on record as they were recorded by me^ earlier to the reading of
the judgment of my Lord the Chief Justice.
2. The above noted three Petitions are filed under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973, to challenge the validity
of Constitution (Eighth Amendment) Act of 1985 as well as the election to
Senate held in 1985 and continuation of Senate as a body under Article 59 of
Constitution of 1973. For the sake of convenience, I will hereinafter refer, the
Constitution (Eighth Amendment) Act of 1985 as "the Eighth
Amendment" and the "Constitution of Islamic Republic of Pakistan, 1973 as
"the Constitution", only, respectively, in this order.
3. The validity of Eighth Amendment and the election to the Senate and
its continuance as a body under Article 59 of the Constitution is challenged by
the Petitioners in the above cases on different grounds. It will, therefore, be
advantageous to state here in brief the grounds of attack in each
petition separately:-
4. Petition No. 76 of 1989 is filed by Mr. Abdul Mujeeb Pirzada, Advocate, a
practising counsel of this court. The Petitioner who personally argued his
case, advanced the following grounds of attack on the validity of Eighth
Amendment and election to Senate and its continuation as a body under Article
59 of the Constitution.
(i) That the present Senate having not been elected under the Constitution is an unauthorised body
and as such its continuation and functioning as a body under Article 59 of the Constitution be declared as
invalid.
(ii) That the extension in the term of Senate from 4 years to six years by way of amendment of Article 59(3) of
the Constitution through the Eighth Amendment is invalid as the said amendment was made by an unauthorised
body.
(iii) That in any case the election to Senate having taken place in March, 1985, four years term, as originally
provided in Article 59(3) of the Constitution, expired in March, 1989 and, therefore, fresh election to Senate
should have been held in March, 1989. The continuation of Senate as a body constituted under Article 59 of
the Constitution after March, 1989 is, therefore, wholly unauthorised and against the provisions of the
Constitution.
(iv) That the Parliament which came into existence as a result of partyless election of 1985 was an
unauthorised body, as partyless election held in 1985 amounted to negation of the parliamentary democracy
conceived under the Constitution, and as such the amendments in the Constitution introduced by such an
unauthorised body through Eighth Amendment were totally invalid which should be declared as such.
(v) That in any case the Eighth Amendment had the effect of altering/changing the basic structure of the
Constitution and as such for this reason also the Eighth Amendment is liable to be struck down.
5. The Petitioner in Petition No. 163 of 1989, who is also a practicing counsel of this court and
argued his case personally, challenged the validity of Eighth Amendment on the sole ground that the Eighth
Amendment was passed by the Parliament on a date when Martial Law was still enforced in the country and
the Constitution was held in abeyance and as such the amendment was wholly without jurisdiction. According
to Petitioner, at the relevant date the only authority competent to amend the Constitution was Late General
Ziaul Haq who was vested with such authority under the judgment of Supreme Court in the case of Begum
Nusrat Bhutto vs. Chief of Army Staff and others (PLD 1977 SC 657).
6. The last Petition No. 168 of 1989 is filed by one Haji Ahmed, whose learned counsel has raised
following grounds of attack to the validity of Eighth Amendment and election to Senate and its continuation
as a body under Article 59 of the Constitution.
(i) That Late General Ziaul Haq was a usurper as he assumed power on 5-7-1977 by deposing a duly elected
Prime Minister of Pakistan and as such all his acts and actions were unauthorised and only those actions and
acts of the usurper could be condoned which fulfilled the test laid down in the case of Asma
Jillani Vs. Government of Punjab (PLD 1972 SC 139).
(ii) That in the alternative, limited mandate given to late General Ziaul

A. MUJEEB FlRZADA V. FED. OF ISLAMIC REP: OF PAHSTAJT Haq (CMLA) by the Supreme Court in the
case of Begum Nuaqff^ Bhutto Vs. Chief of Army Staff and others came to an end on 17-11-, 1979 when
the late General deviated from his solemn pledge an4 undertaking given to the court to hold general
election in the country; and in any case he turned into a usurper on 24-3-1981 whea he promulgated
legislative measures in the form of PCO of 1981 which had the effect of abrogating the Constitution
and as such att his future actions from the above dates are to be tested by the court on the doctrine of
condonation as laid down in the case of Asm& Jillani Vs. Government of Punjab and all such acts and
legislative measures of late General Ziaul Haq which did not conform to the test laid in the above case
should be struck down as invalid.

(iii) (iv) (v)

That the late General Ziaul Haq was not a duly elected President under the Constitution, as he came
to occupy that office as a result of Referendum of 1984 which was a fraud on the people of P; as the
question" framed in that Referendum offered no choice to electorate
which is the basic feature and characteristic of refrendum. Accordingly late General Ziaul Haq
could not give assent to the Eighth Amendment Bill as President of Pakistan.
That the general elections held in the country in 1985 on non-partjr*<*1 basis were against the spirit
of Constitution and as such Parliament which came into existence as a result of that election wak^ an
unauthorised body which was not competent to amend &e Constitution. Alternatively, it is urged
that the Par liament even if-it -was validly elected had no mandate from the people to alter
or , amend the Constitution and as such for this reason also it was not '" competent to amend the
Constitution.
That in any case the amendments introduced in the Constitution by, the Eighth Amendment had the
effect of altering the basic structure , of the Constitution which the Parliament under no
circumstances *, was competent to do and as such it is liable to be struck down.

(vi) That the power available to Late General Ziaul Haq either the decision of Supreme Court in the
case of Begum Nusrat Bhutto, or under the Provisional Constitution Order of 1981, was exhausted on
promulgation of P.O. No. 14 of 1985 on 2-3-1985 and as such I amendment in the Constitution, if any,
could have been in accordance with the provisions of said P.O. No.14 of 1985. Eighth Amendment
having not been made in accordance with provisions of P.O. No.14 of 1985 was invalid. For the
samethe promulgation of P.O. No. 20 of 1981 by Late General Ziaul Ha% -'"' was an invalid piece of
legislation. ~f - > 1. The learned Deputy Attorney General who represented the Federation of Pakistan
in the above cases, generally supported the contentions of the Petitioners in the above cases, though he
simultaneously added that striking down Eighth Amendment as a whole would amount to rewriting of
the Constitution-I the Court which cannot be done in exercise of the power of this court Article
199 of the Constitution. The learned Deputy Attorne suggested that as contended by the learned Attorney
General, the court should examine each and every amendment introduced in the constitution by the
Eighth Amendment and on the doctrine of condonation as laid down hi Asma Jilani's case strike down those
amendments which did not fulfil the test laid down in that case. The learned Advocate General, Sind adopted
the arguments of the Deputy Attorney General.
8. It will be appropriate at this stage to refer to the contentions of learned Attorney General, who
appeared in the case on court notice as an amicus, before I take note of the arguments of the contesting
Respondents in these cases.
9. The learned Attorney General firstly expressed the view that superior courts in Pakistan under
Article 199 of the Constitution have the jurisdiction to examine the validity of a constitutional amendment
made by the Parliament. In the view of learned Attorney General, the parliament in Pakistan, does not
enjoy unfettered power to amend the Constitution. The learned Attorney General was
of the view that parliament could not amend the Constitution in a manner which would alter or change its
basic structure. Elaborating his argument further, the learned Attorney General contended that the power
of parliament to amend the Constitution is circumscribed by the limitations mentioned in the
Objectives Resolution of 1949, which is part of the preamble of the Constitution and as is
also now made an operative portion of the Constitution hi the form of Article 2-A. The learned Attorney
General contended, that the courts will not hesitate to strike down an amendment in the Constitution
made by the parliament which comes in conflict with the Objectives Resolution. According to learned
Attorney General the basic features of the Constitution are, its Islamic character, a federal
structure based on parliamentary system of Government, and preservation of human rights in the form of
Fundamental Rights. The learned Attorney General very frankly stated that it is not possible for him,
here, to point out all those amendments which according to him, affected the basic structure of
the Constitution or came in conflict with the Objectives Resolution, as it would require a stupendous
task of analysing these amendments. The learned Attorney General, nevertheless, mentioned and criticised
the amendments made in Articles 41, 46, 48, 58, 91, 94, 239, 242, 243 and 245 of the Constitution, in a bid to
show that these amendments made serious inroads in the Islamic, democratic and parliamentary
character of the Constitution which are the basic feature of the Constitution, and prayed that these
amendments may be declared invalid. The learned Attorney General at the same time very fairly stated
that it is quite .possible that upon examination of other amendments made in the Constitution by the Eighth
Amendment, the court may discover that some of the*se amendments' have neither had the effect of changing
the basic features of the Constitution nor they came hi conflict with the terms of Objectives Resolution, and
as such these amendments will not be declared by the court as invalid. The learned Attorney General
pointed out one such amendment made in the Constitution by the Eighth Amendment in the form of Article 2-
A and stated that he is'not opposed to it.
8. Learned counsel for the Respondents who represented Senators in these cases, on the other hand,
contended that if the Eighth Amendment is struck down by the court not only the old order will have to be
declared invalid but the new dispensation which came into existence as a result of party based general
elections held in November, 1988 will also have to give way.

9. Mr. S.M. Zaffar, one of the learned counsel who represented some of the Senators in these
cases, opened the arguments on behalf of contesting Respondents, contended that the present
parliament in the Centre and 4
Assemblies in the provinces, which came into power as a result of General Elections of 1988, are
functioning under the Constitution as amended by-Eighth Amendment is sufficiently borne out from
the fact that the present National Assembly consists of 207 Muslims members, ten minority seats and
20 reserved seats for women as against 200 Muslim seats, 6 minority seats and 10 reserved seats for
women originally provided in Article 51 of the Constitution. Similarly,
the present Senate consists of eighty seven members as against sixty three members provided
originally in Article 59 of the Constitution. The present Prime Minister was nominated by the President
in accordance with the amended Article 91 of the Constitution and she obtained vote of confidence on
the basis of existing 231 members of National Assembly. Similarly the election to the office
of President of Pakistan has also taken place on the basis of existing number of members of National
Assembly, Provincial Assemblies and the Senate. It is accordingly contended that if Eighth Amendment
is declared invalid besides the holders of these high offices several other elected offices in the
parliament and Senate will also be affected which will lead to a choatic condition in the
country.
In reply to the arguments of learned counsel for the Petitioners that the Eighth Amendment in the
Constitution has changed the basic structure of the Constitution, Mr. S.M. Zaffar, firstly contended
that, no such effect has been
produced by these amendments, and, secondly, the amendments in th Constitution having
been made by the parliament which was elected by the popular vote of the majority of electorate,
could not be brought under challenge
before the court, except on ground of violation of the provision of Constitution applicable to
amendments. Learned counsel further contended that insofar Pakistan is concerned, the theory of
change in the basic structure of Constitution, enunciated in the well known Golak Nath's case (AIR
1967 SC 1648) by the Indian Supreme Court, has not been accepted by the Supreme Court of
Pakistan and as such the learned counsel for the petitioners cannot succeed on the argument
that the Eighth Amendment has the affect of changing the basic structure of the Constitution. In
reply to the contention of the learned counsel for the petitioners that the Assembly which was
elected as a result of non-party basis elections of 1985, was not competent to make amendment in
the Constitution, as they had no such mandate from the people and that the non-party elections
were contrary to the spirit of the'Constitution, Mr. S.M. Zaffar, contended that the non- party
elections were held at a time when fundamental rights were suspended,
and, therefore, the
law promulgated by the President/CMLA during that
period | providing for election on non-party basis could not be
held to be invalid on ground of violation of Fundamental Rights. The learned counsel
alternatively urged that the general elections of 1985 had taken place in Fabruary, 1985
and the Government elected as a result of these partyless elections remained in power in the
country for nearly three years without being challenged from any quarter. It
is pointed out by the
learned counsel that in fact when the Parliament and Assemblies elected in 1985 were
arbitrarily dissolved by the President, the dissolution was held illegal which goes to show
that the parliament and the Assemblies which were elected in the year 1985, as a result of
general election, had the mandate of the people and were competent and legal bodies. With
regard to the contention of the learned counsel for the Petitioners that the Supreme Court while holding
dissolution of Parliament and Assemblies by the Pesident on 29th May, 1988, in the case of Federation of
Pakistan Vs. Mohammad SaifiiUah Klian (PLD 1989 SC 166), as without lawful authority and illegal,
refused to restore them on the ground that the partyless elections were not in consonance with the scheme
of Constitution, Mr. S.M. Zaffar, contended that these observations by the court were made while
considering the exercise of discretionary power under Article 199 of the Constitition, and as such it will
be improper to interpret these observations as meaning that the elections of 1985 were invalid.
10. Mr. AA. Fazeel, another learned counsel for some of the Senators contended that as a result of
the pronouncement of the Supreme Court in the case of Federation of Pakistan Vs. Ghulam Mustafa
Khar (PLD 1989 SC 26), all laws enacted by the CMLA/President from 5-7-1977 to 29th December, 1985,
were validated and the effect of validation, according to the learned counsel, is that the promulgation of such
laws were also held to be competent. Mr. Fazeel also questioned the locus standi of the petitioners in
these cases besides raising the question of laches and acquiesance.
11. Mr. Khalid M. Ishaque, another learned counsel appearing for some of the Senators, urged that
where a Bench of this court has already taken a view on a particular controversy another bench of the court
will normally not depart from that view. According to Mr. Khalid M. Ishaque in Mohammad Bachal
Memon Vs." Gov. of Sind (PLD 1987 Kar. 296), a full Bench of this court has akeady
pronounced upon the competency of legislature of 1985 and as such the present bench will not depart from
that view. The learned counsel also urged that the results of elections of 1985 having been accepted by the
people the court cannot adjudicate upon it and declare it as invalid. Replying the contention of Petitioners that
partyless elections are negation of concept of democracy and parliamentary system, Mr. Khalid Ishaque
referred to the opinion of some modern authors and .contended that there has been a lot of re-thinking on
the subject and serious doubts have been expressed on the usefulness and efficiency of political parties in a
democrtic system of Government and there is a clear leaning for inclusion –of intellectuals in the system as
against party politicians.
12. Mr. Sabihuddin, Advocate, for some of the Senators contended that holding of partyless
elections cannot be termed as violation of any constitutional provisions as they were held under P.O. 5 of 1977
which was a sub constitutional legislation. The learned counsel urged that at the time 1985 elections were
held, emergency was enforced in the country and as such under Article 233 of the Constitution the
parliament was competent to make law contrary to fundamental rights. It is accordingly contended by learned
counsel that even if the holding of partyless elections is held to be contrary to the provisions of rticle 17 of
the Constitution, it could not be declared invalid by the courts, as on the relevant time Article 17 of the
Constitution stood suspended. It is also contended by the learned counsel that the rules laid down in the case
of Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416) will apply prospectively and not
retrospectively so as to affect the past elections of 1985.
13. Mr. Obaidur Rehman for Intervenor contended that Senate is a
 15. At this stage I may also mention here that the learned counsel for the Petitioners initially took
the stand that the entire Eighth Amendment is to be struck down as unconstitutional and invalid, but after
hearing the arguments of the learned Attorney General and Deputy Attorney General and the
learned counsel for the contesting Respondents, they did not press for striking down of the Eighth Amendment
as a whole. Mr. Mujeeb Pirzada, while exercising the right of reply stated that he is only challenging the
validity of elections to Senate and its continuation as a body under Article 59 of the Constitution and Mr.
Rashid Akhund, fell in line with the views expressed by the learned Attorney General hen he stated in reply
that all the amendments introduced in the Constitution by Eighth Amendment need not be struck down and
only those be declared invalid which are foun.I by the court on examination 1 that they altered or changed
the basic structure of the Constitution.
16. In order to comprehend the controversies raised in the above Petitions it will be useful to state here hi
brief some of the important events which took place between the period from 6th July, 1977 to November 1988,
which not only had the effect of changing the course of our national life more than once during
this period, but also led to the resolution of numerous legal and constitutional
controversies in Superior courts of the country, which greatly influenced the existing political process in
the country. On 5th July 1977, the then Chief of Army Staff Gen. Ziaul Haq, deposed Mr. ZA. Bhutto, the
then Prime Minister of Pakistan, proclaimed Martial Law
in the country, dissolved the National Assembly, the Senate and the Provincial Assemblies and assumed
power under
CMLA Order No. 1 of 1977, known as the Laws (Continuance in Force) Order 1977. The proclamation of 5th
July, 1977 and the CMLA Order No. 1 of 1977 was brought under challenge in the case of Begum Musrat
Bhutto Vs. Chief of Army Staff and others (PLD 1977 SC 657). The court after examining in detail the
events which preceded the proclamation of Martial Law in the country by the Chief of
Army Staff on 5th July, 1977, and promulgation of CMLA Order 1 of 1977 held that the proclamation of
Martial Law by the Chief of Army Staff was an extra constitutional step necessitated by the complete break
down and erosion of the constitutional and moral authority of the Government of ZA. Bhutto as a result of
the unprecedented protest movement launched by the PNA. The imposition of Martial Law in the country in
this background was validated on the doctrine of necessity and the Chief Martial Law Administrator was held
entitled to perform all such acts and promulgate all legislative measures which have been consistently recognized
by the judicial authorities within the scope of law of necessity, namely, all acts and legislative measures which are
in accordance with or could have been made under the Constitution including the power to amend it; all acts
which tend to advance or promote the good of the people; all acts required to be done for the ordinary orderly
running of the State and all such acts as would establish or lead to the establishment of the declarqd
objectives of the proclamation of Martial Law$ namely, restoration of law and order and normalcy in the
country and the earliest possible holding of free and fair elections for the purposes of restoration of democracy
under the Constitution. That the aforementioned acts could be performed or carried out by the CMLA by
means of Presidential Orders, Ordinances, Martial Law Regulations or Orders as the occasion may require.
17. Soon after the above decision in Begum Nusrat Bhutto's case various constitutional appointments
made by CMLA and some legislative measures adopted by him for arranging the forthcoming general
elections ia the country were again brought under challenge before the Supreme Court in the case of ZA.
Bhutto Vs. State (PLD 1978 SC 40) on the ground that these appointments and legislative measures were
violative of the provisions of the Constitution and tlie rule laid down by the Supreme Court in Begum
Nusrat Bhutto's case. The Supreme Court while repelling the contentions of the Petitioner explained
the effect of Begum Nusrat Bhutto's case as follows at page 59 of the report:-
"K 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 case, while spelling out the powers which may be exercised by the Chief Martial Law
Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context
must be judged by the standards of an ordinary, prudent and reasonable citizen, and will depend, on the
prevailing circumstances and the object with which the action has been taken. These observations are, of
course, without derogation to the other accepted principles governing the exercise of powers conferred by
Article 199 of the Constitution.
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
tne restoration of democratic institutions under the Constitution. As the Constitution, unfortunately, does
not contain any provisions for meetiag the unprecedented situation which we are considering here,
the President, 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 necessasry 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 elections such as the -number of Members of
the Election Commission."
After decision of the Supreme Court in the case otZA Bhutto Vs. State the then President of Pakistan Mr.
Fazal Ellahi, who continued to hold office even after proclamation of Martial Law hi the country under the
proclamation of 5th July, 1977, resigned from his post. This led to the issuance of P.O. No. 13 of 1978
% CMLA which provided for filling in the vacancy of President in event of death, physical or mental
incapacity, resignation or by reason of incumbent of that office relinquishing charge of office or for any other
reason, before election of the President under the Constitution, by the Chief Martial Law Administrator or
such other person designated by him. The vires of P.O. No. 13 of 1978 was challenged before a Division
Bench of Lahore High Court in the case of Ghulam Jiltani Vs. Province of Punjab (PLD 1979 Lahore 564}
but the court found it valid on the basis of the rule laid down in Nusrat Bhutto's case. On 27th May, 1980 P.O.
No. 1 of 1980 was issued by the President which amended Article 199 of die Constitution, tatting away
the power of High Courts to judicially review the actions of Martial Law Authorities or to examine or pronounce
upon the validity or effect of any Martial Law Regulation, Martial Law Order, made by CMLA or
MLA, besides introducing Chap. 3-A in Constitudon which provided for establishment of Federal Shariat Court.
This P.O. No. 1 of 1980 came up for consideration before a Full Bench of this court hi the case of Haji
Abdullah Vs. Presiding Officer, Summary Military Court (PLD 1980 Kar. 498) of which I was one of the
members and the court by majority ruled in that case that the amendment made in Article 199 of the
Constitution being of a temporary and transitory nature applicable only during the period of constitutional
deviation and the said amendments not having the effect of totally destroying the power of the court under
Article 199 of the Constitution, were valid in view of the decisions in the cases of Begum
Nusrat Bhutto Vs. COAS and Z.A Bhutto Vs. State.
Some time after promulgation of PO No. 1 of 1980 the Provisional Constitutional Order (CMLA's
Order 1 of 1981), popularly known as PCO of 1981 was pomulgated by the President on 24th March, 1981.
The PCO of 1981 though adopted certain provisions of the Constitudon of 1973 as declared in its Article 2.
But in practice it sought to do away with the effect of the decision of Supreme Court in the case of Begum
Nursta Bhutto Vs. COAS and provided for new dispensation in the country in accordance with the provisions
of this Order. The effect and validity of the PCO of 1981 came to be examined in several cases before the High
Courts and the Hon'ble Supreme Court and I will presently refer here some of these cases. In the case of Dr.
Mohammad Ifyas Dobas Vs. Punjab Tribunal and others (1982 SCMR 562) the Supreme Court had granted
leave to appeal to examine the interpretation of section 4 of the Services Tribunal Act, 1973 and MLR-23
clause (2). The matter came up before the court after enforcement of PCO of 1981, the then Acting Chief
Justice (now the present Chief Justice of Pakistan) who expressed the opinion on behalf of the court while
dismissing the petition as not maintainable on account of promulgation of P.C.O. observed as follows:-
"Under the present dispensation, namely, the Provisional Constitution Order of 1981, any challenge to an
order passed by the Martial Law Administrator is not entertainable in view of clause (2) of Article
15. Therefore, any submission in regard to the validity of the order of compulsory retirement is beyond
the pale of challenge."
Similarly in Mohammad Haroon Vs. District Food Controller (1982 SCMR 551) about 19 Constitution
Petitions were filed by different persons to challenge the termination of their appointment as Depot holder
under Martial Law Instruction No. 22, issued by MLA, Zone A. The High Court of Lahore dismissed
the petitions as not maintainable under Article 15 of PCO. Nasim Hasan Shah, J. who expressed the opinion
on bahalf of court while dismissing the petition fof leave to appeal observed as follows:-
"It is clear, therefore, that the said Instruction is a complete code on the subject and action taken by the
authorities mentioned therein is to be construed to be action taken under the said Instruction, which as
already pointed out, is, in effect, a "rule" framed by a Martial Law Administrator. Hence action taken
thereunder would fall under Article 15 of the Provisional Constitution Order, 1981, which provision
ousts the jurisdiction of the High Court impugned before us cannot be excepted to.
Rana Abdul Majid, learned counsel for the petitioners appearing in support of the remaining petitions
submitted that he was neither challenging the validity of Martial Law Instruction No. 22 nor questioning the
view that if action was taken thereunder it would be immune from challenge after the promulgation of the
Provisional Constitution Order, 1981. His plea was that the provisions of Martial Law Instructions No.
22 had not been observed, while cancelling the depot of the petitioners, whom he was representing. In
this connection, he submitted that in the case of Qazi Muhammad Ishaq (Petitioner in C.P.S.LA No,
184/82) for instance the said petitioner's authorisation was cancelled <*ii<riout hearing him, although para 8
of Martial Law Order itself provides that the cancellation of the authorisation would be ordered only
after giving a show cause notice to the persons effected.
The question whether a person was issued a show cause notice before cancelling his authorisation or not is
a question of fact; and insofar as action purports to have been taken under the said Martial
Law Instruction No. 22 and shall be presumed that its provisions have been complied with. Moreso its
validity is to be judged according to the tenor of the order and if it purports to be passed in pursuance
of the said Martial Law Instruction it is immune from challenge. However, if the petitioners felt
aggrieved by the said order on the ground now .urged ,. before us they should have filed an appeal
to the authority superior to one, who had passed the said order as provided for under para 9 of
the Instruction, in the course of which the objection being taken before us could have been scrutinized
and investigated."
It is quite clear from the above quotation that in some of the above cases, before the Supreme Court the
petitioners without challenging the validity of Martial Law Instruction No. 22 or questioning the view
that the action taken thereunder would be immune from challenge after the promulgation of PCO
1981, wanted to convass before the court that the impugned action taken against them was not
in confirmity with the provisions of that law which provided for issuance of a show cause notice to
petitioner before passing of impugneld order which was not issued to them, but the Supreme Court did
not find it possible even to examine this limited question in view of the ouster of jurisdiction of the
court under PCO of 1981 and contention was disposed of with the observations quoted above. the case
of GovL of Punjab Vs. Saleem Hussein Girdazi (1985 SCMR 443) die order passed by the Punjab
Services Tribunal holding the order passed on renew by the MLA Zone A ordering reinstatement of
respondent as Asstt: Sub Inspector, bad in law, was challenged before the Supreme Court on the
ground that the order passed by MLA Zone A could not be declared as bad in law by Service Tribunal
hi view of Article 15(2) of PCO. The Supreme Court allowed the appeal of Government of Punjab and
Mian Burhanuddin Khan, J. who expressed the opinion of court this time expressed as follows:-
Therefore, the finding of the learned Tribunal is misconceived on this point. Moreover, under Article
15(2) of the Provisional Constitution Order, 1981 which is as follows:-
"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 firth day of July, 1977, hi
exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law
Administrator, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules,
orders or bye-laws, or in execution of any Order made or sentences passed by any authority in
the exercise or purported exercise of powers as aforesaid shall, notwithstanding any judgment of
any court, be deemed to be and always to have been validly made, taken or done and shall not be
called in question in any court on any ground whatsoever.................................. ..."the order or the
Board or the constitution of the Board cannot be challenged. In view of this prohibitory provision of
law the learned Tribunal was debarred from adjudicating on the order passed under
Martial Law Instruction."............................................ ''.
Similar views were expressed by the High Court of Lahore hi the case of MOJ. Gen. (Rtd) Tajjamal
Hussain Malik regarding validity and effect of P.C.O. la so far Sindh High Court is concerned, the
effect of P.C.O. was examined by a Full Bench of this court in the case of Nazar Mohammad
Khan Vs. Pakistan (PLD 1986 Kar. 516) and the learned CJ. as he then was, after quoting Article IS
of P.C.O. observed as follows at page 521 of the report:-
"11. As regards the order terminating the service it may be stated that it was passed under paragraph 4 of
Martial Law Regulation No. 22.
Now, taking up the first objection, it may be stated that instead of provisions of Article 15(5) (d) of the
Provisional Constitution Order 1981, the provisions of Article 15, clause (2) and (5) (a) are attracted, The
provisions have already been quoted above. It will be seen from the above provisions of clause (2) that on or
after fifth day of July, 1977, they protect all orders made proceedings taken and acts done by any authority in
the exercise or purported exercise of powers derived from, any President's Order or Orders of Martial
Law Administrator, Martial Law Regulations, Martial Law Orders, etc., notwithstanding any judgment of
any Court, deemed to be and always to have been validly made, taken or done and they could not be called
in question in any Court on aay .ground whatsoever. Since the order of termination of the service of the
petitioner was passed under Martial Law Regulation No. 52, therefore, it could not have been called in
question.
We are fortified in our view by serveral decisions of the Supreme Court and of High Courts namely,
Muhammad Haroon V. District food Controller and others (1), Dr. Muhammad EUas Dubash v.
Punjab Service Tribunal and others (2) Electric Lamp Manufacturers of Pakistan, Ltd. v. Additional
Commissioner, Karachi and 3 others (3), The Province of the Punjab and others v. Syed Mohammad
Akram Shah, (4) Government of Punjab and others v. Saleem Hussain Gardezi (5) Major-General (Retd.)
Tajjamal Hussain Malik v. Federal Government of Pakistan through Defence Secretary and 2 others (6),
Sirajuddin v. Larkana Municipal Committee (7), and Muhammad Anwar Khan v. C.M.LA. etc. (8).
It will thus be seen that not only the validity of P.C.O. of 1981 was accepted by the superior courts, but full
effect was given to its various provisions by all the courts including the Supreme Court. This situation
continued until holding of general elections on 7th and 9th Feb., 1985 to National and Provincial
Assemblies respectively, under P.O. 5 of 1977 as amended upto Feb., 1985. On 1-3-1985 the Senate was
elected and on the following day, namely, 2-3-1985 Revival of Constitution Order (P.O.14), popularly
known as RCO of 1985 was promulgated by the President. A notification under Article 4 of the RCO was
issued on 10th March, 1985 fixing that date as the day on which the Constitution of 1973 as amended by
RCO of 1985, shall come into effect except Articles 6,8 to 28 (both inclusive), clause (2) and 2(a) of
Article 101, Article 199, 213 to 216 (both inclusive) and Article 270-A. On 19th March, 1985
Constitution Second Amendment (PO 20/1985) was promulgated which substituted the present Article 239
in the Constitution in place of the existing Article 239 which was introduced by R.C.O. of 1985. On 19-3-
1985 the Constitution was further amended %y Constitution (3rd Amendment) Order (PO 24) of 1985. On
23rd Matcfc joint session of Parliament was held. On 8-9-1985 Eighth Amendment Bitt ^a& introduced in
the Parliament but it was later withdrawn. On 30th Sept., 1985 the Eighth Amendment Bill was represented
in a modified form and after discussion on the floor of National Assembly it was passed by overwhelming
majority ef legislature. The Bill was then'transmitted to Senate where it was passed oa 22-10-1985. On 9-11-
1985 the President assented to the above Eighth Amendment BiB which became part of the Constitution.
On 29th December, 1985 the President issued two notifications under P.O. 14 of 1985, fixing the date for
coming into force of suspended Articles 6,8 to 28 (both inclusive), clause (2) of Article Mfl, Article 199,
213 to 216 (both inclusive) and Article 270-A of Constitution and omission of Article 212-A from the
Constitution, as the day on which proclamation of 5th July will be revoked. On the following day namely
30-12-1985 proclamation of withdrawal of Martial Law was issued, which revoked the proclamation of 5th
July 1977 and also repealed the Laws (Continuance in Force) Order 1977 and the Provisional Constitution
Order 1981, with the result tfiat aft the provisions of the Constitution became operative from this date and
Article 212-A, stood deleted from the Constitution. On the same day namely 30-12-198S> Pending
Proceedings Order, Martial Law Order 107 was promulgated by the President. The National and Provincial
Assemblies thus elected as a result of 1985 election, continued to function under the Constitution until they
were dissolved by the President on 29-5-1988. On 29th May, 1988 General Ziaul Haq, as President of
Pakistan, dissolved the National Assembly by an order passed under Article 48(2) of the Constitution and
simultaneously Provincial Assemblies were also dissolved by the respective Governors of the four
provinces. On 20th July, 1988 late Gen. Ziaul Haq announced that general elections will be held in the
country on 16th November, 1988. The late Gen. Ziaul Haq, however, died in an air crash, on 17th August,
1988 and in accordance with the provisions of the Constitution the then Chairman of the Senate Mr.
Ghulam Ishaque Khan was sworn in as tke President of Pakistan. Elections to the National and Provincial
Assemblies were held as announced and power was transferred to the elected representatives both in
Center and in the provinces which are functioning after taking oath under the Constitution.
In the meantime, before the general elections of 1988, the dissolution of National Assembly and the
Provincial Assemblies by late General Ziaul Haq and the Governors respectively was challenged before a Full
Bench of Lahore High. Court in the case of Muhammad Saifuttah Vs. Federation of Pakistan (PLD 1988 Lah.
725) and the court unanimously held that dissolution of National Assembly and the Provincial Assemblies by
the President and the Governors was without lawful authority but at the same time the court refused to restore
the Assemblies on the ground that the elections to the National and Provincial Assemblies had already been
announced and all preparations for holding of these elections have been made and people are read^ to
exercise thier right of vote. The above decision of Lahore High Court was challenged before the Supreme
Court by the Federation of Pakistan but the appeal was dismissed which is reported as Federation of
Pakistan vs. Mohammad Saifullah (PLD 1989 SC 166).
In the above stated background I now proceed to consider the contentions of the parties in the above
cases. The main and basic question which requires determination in my view, in the above cases, in the light
of the contentions of the parties, is, who made the Eighth Amendment in the Constitution and whether the
person or the body introducing the Eighth Amendment in the Consitution was competent. Should, the answer
to the later part of the above controversy be in the affirmative, the further question which is convassed by the
petitioners before us and which requires determinatin is, whether by introducing Eighth Amendment in the
Constitution the person or the body introducing it exceeded or contravened any accepted norm or principles
governing the power to amend the Constitutional provisions. However, if the answer to the competency of
maker of Eighth Amendment is returned by the court in the negative, then the natural consequences,
both according to petitioners and the learned Attorney General, would be that the court will condone only
those amongst the various amendments introduced in the Constitution by the Eighth Amendment, which
fulfilled the test laid down in the case of Asma Jillani vs. Govt. of Punjab. I will take up the first part of the
basic controversy in the cases mentioned above, namely, who made the Eighth Amendment in the Constitution.
In my opinion the answer to this question is fully furnished by the decisions in the cases of Federation of
Pakistan V. Ghulam Mustafa Khar (PLD 1989 SC 26), Ghulam Mustafa Khar v. Pakistan (PLD 1988 Lah.
49=PLJ 1987 Lahore 669) and Mohammad Bachal Memon Vs, Govt,ofSind (PLD 1987 Kar. 296). The
detailed discussion in the above noted three cases, regarding validity of Article 270-A of the Constitution
passed by the Parliament elected in 1985, leaves no room for any doubt that the Eighth Amendment in
the Constitution was introduced and passed by the parliament which was elected as a result of general
elections of 1985. This brings me to the second limb of the main controversy in the cases, namely, whether
the Parliament elected in 1985 was a competent body. The main thrust of the arguments of the learned
counsel for the petitioners jointly, in the above cases, is that the scheme of our constitution does not permit
holding of partlyless elections and as such the elections which were held in 1985 and in which political
parties were not allowed to take part were invalid and as a consequence thereof, the parliament and the
Assemblies which came into power as a result of these partyless elections were unauthorised bodies. In
support of the above argument the learned counsel for the petitioners relied on the case of Miss Benazir
Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and particularly on the following observations of
Shafiur Rehman J. in the case of Federation of Pakistan vs. Mohammad Saifullah Khan (PLD 1989 SC 166):

"In our context what is important, is that the restoration of a National Assembly and Provincial
Assemblies which were brought into the existence by materially departing from the essential feature of
our own constitutional set up cannot be allowed to take place. As we all know these Assemblies were
brought into existence as a result of partyless elections. As early as in the. year 1959, the Constitution
Commission of our country had pointed out that "as long as it is the representative form of the
Government that has to be worked we fail to see how political parties can be avoided". Justice SA.
Rehman, observed in the case of AbulA'la Maudoodi v. Government of West Pakistan (PLD 1964 SC
673) that "In a democratic set up such as is visualised by our present Constitution, the presence of
political parties is regarded as an essential feature so that it is conceivable that the opposition of today
maybe the Government of tomorrow". In judgment of this court of Miss Benazir Bhutto the following
observations made by each of the learned Judges recording an opinion are relevant:-
Our Constitution is of the pattern of Parliamentary democracy with a Cabinet system based on party system as
essentially it is composed of the representatives of a party which is in majority It is a party system
that converts the results of a Parliamentary election into a Government." (Muhammad Haleem, CJ.)
(ii) It provides a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs
and governings of Pakistan through political activity relating thereto. (MA. Zullah, J.).
(iii) Persons elected to the legislature in their personal capacities have hardly any importance. They just toss
around on the political scene, rudderless and without a destination. It is only when they band themselves into
a group, as a party, that they become a force exercising some influence by their activities. It is only as
members of a political party and not an individual member of the legislature; can they achieve their
objectives. (Nasim Hasan Shah, J.).
(iv) The right to form, and be member of, a political party, is an indispensable political tool for the effective
use of the process of a democrtic Government. Besides, the right is vital for the maintenance of
other democratic rights like the right to practice one's profession etc. It is often said that Government by public
opinion involves the right to create and organize opinion with a view to influence the conduct of Government,,
or to bring about a change in the Government. (Abdul Kadir Shaikh, J.).
(v) It is conceded on all hands and is so recognized in the Consitution that Islam confers on the people the
right to choose the persons who shall govern them. To deny them the right to organize themselves for
choosing such persons is to negate and destroy that right itself. (Shafiur Rehman, J.).
(vi) The expression 'political justice' is very significant and it has been placed in the category of fundamental
rights. Political parties have become a subject-matter of a fundamental right in consonance with the
said provision in the Objectives Resolution. Even otherwise, speaking broadly our Constitution is a Federal
Constitution based on the model of Parliamentary form of representative Government prevalent in
United Kingdom. It is also clear from the Objectives Resolution that principles of democracy as enunciated
by Islam are to be fully observed. True and fair elections and the existence of political parties, is an essential
adjunct of a functional democratic system of Government. (Zaffar Hussain Mirza,!.).
It will be clear from the foregoing observations that Partyless elections are not in consonance with the Scheme
of our Constitution and when this Court is possesed of a discretion, or a choice whether to revive, restore
or perpetuate by resuscicating such Assemblies, the Court will stand for constitutionalism rather than
departures and deviations from it and refuse to restore them."

Before dealing with the above common argument of petitioners in these cases, regarding validity of elections
of 1985 I would like to deal with another objection raised by the petitioner in petition No. 168/1989 regarding
the validity of elections of 1985. It is contended by the learned counsel for the petitioner in Petition
No, 168/1989 that the assumption of power by late Gen. Ziaul Haq on 5-7-1977 was an act of usurption of
power. Alternatively, it is urged by the learned counsel that even if i( is found by the court that assumption of
power by the late General was validated by the Supreme Court hi Begum Nusrat Bhutto's case the
limited mandate given to late General came to an end when he deviated from his solemn pledge given to the
court for holding free and fair election in the country and came out with legislature measures in the form of
P.C.O of 1981, which virtually abrogated the Constitution. It is accordingly contended that the parliament
and the Assemblies elected on non-party basis in the general elections of 1985, under the rule of a usurper
could not be treated as validly constituted bodies.
While narrating some of the important events in the country between the period from 5th July, 1977 upto
the holding of general elections of 1988, in die earlier part of this order, I not only mentioned the various
legislative measures taken by late Gen. Ziaul Haq (including promulgation of P.C.O. of 1981), during | the
above period, but I also referred to some of the cases decided by the superior I courts in Pakistan, in which the
validity of these legislative measures was tested {and upheld. In these circumstances, I .am of the view that it
is no more open to argument that late Genl. Ziaul Haq was usurper or that his acts and legislative |
measures should be looked upon as an act of usurper and tested and codoned oa i the principles laid
down iaAsma Jillani's case. The attempt of the learned counsel for the petitioner to draw a parallel between the
facts and circumstances ofAsma Jillani's case and Begum Nusrat Bhutto's case is difficult to assimilate.
In Asma Jillani's case the Supreme Court held General Mohammad Yahya Khan as a ('usurper and
abrogation of 1962 Constitution by him as illegal. The situation in \Begutn Nusrat Bhutto's case was,
however, different. In the later case, the j Supreme Court not only found that the assumption of
power by late Gen. [Mohammad Ziaul Haq on 5-7-1977, was valid on the doctrine of necessity but
ft also,held that he was entitled to perform all such acts or legislative measures which could have been
done or performed under the Constitution of 1973 including the power to amend the Constitution, by
way of Presidential Orders, Ordinances, Martial Law Regulations or Orders, besides taking all such acts
and measures which were necessary for ordinary orderly running of the State and to achieve the declared
objectives of proclamation of Martial Law, namely, restoration of law and order and normalcy in the
country and the earliest possible holding of general elections.
The fact that the late Genl. Ziaul Haq did not keep his commitment made to the Supreme Court in Begum
Nusrat Bhutto's case is neither open to be decided by this court 'in the present proceedings, nor in my
opinion, it is of any consequence or relevance in the present circumstances when the country is run by the
duly elected Government both in the Centre and the provinces. Similarly, the AG validity of P.C.O. of 1981
and other subsequent legislative measures taken by late Gen. Ziaul Haq are not open to any challenge now as
these measures were not only upheld by the superior courts, including Supreme Court of Pakistan,
ia various cases referred by me earlier in this order, but fuH i legislative measures ia court proceedings. With
regard to the contention of learned counsel that the general elections of 1985 were held during the rule of a
usurper and, therefore, they were not valid, it -• will suffice to say here that in view of what I have said above, it
cannot be said that the general elections of 1985 were held under the rule of a usurper. However, if I assume
only for the sake of argument in the case, that the elections of 1985 were held by a usurper, the result would
not be different, as it cannot be denied that when a civilian Government is deposed or overthrown by a
military dictator, the j only recognised peaceful means to revert to the civilian rule, is through use of ballot,
even though such exercise is to be undertaken under the agis of the military dictator or usurper. It will be
pertinent to mention here that in the case otAsmal Jillani the Supreme Court though held General
Mohammad Yahya Khan to be a j usurper but the general elections of 1970 in the country held under his rule
and I under the legislative measures promulgated by him, were not declared invalid. I therefore, find no
substance in the submission of learned counsel for the petitioner in petition No. 168/1989, that late
Gen. Ziaul Haq was a usurper and that the National and Provincial Assemblies elected during his rule in
pursuance of the legislative measures enforced by him in 1985 were incompetent and invalid.
I now proceed to examine the other limb of the joint contention of the petitioners that the partyless elections
of 1985 were invalid as they were opposed to the scheme of the Constitution. In support of this contention,
the petitioners have relied on the case of Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and the
observations of Shafiur Rehman J. in the case of Federation of Pakistan vs. Muhammad Saifullah
Khan (PLD 1989 SC 166).
In the case of Benazir Bhutto vs. Federation of Pakistan, the petitioner who was co-Chairperson of a political
party had challenged the validity of various provisions of Political Parties Act, 1962 as amended, before the
Supreme Court. The Supreme Court while holding some of the provisions of Political Parties Act, 1962 as
wholly void and others partially invalid finally concluded as follows:-
"In the light of what has been held in this judgment the following provisions of the political Parties Act,
1962 are declared and held to be void to the extent stated; on account of being inconsistent with
the Fundamental Right, enshrined in Article 17(2) and (3) of the Constitution:
(1) Section 3(1) in so far as it relates to and includes therein the disability regarding "security of
Pakistan"; "morality"; and, "maintenance of public order" have been upheld in the manner explained in the
relevant parts of the judgment. The remaining part of section 3 is upheld.
(2) Section 3-A has been upheld at the place and in the manner explained in that context.
But the penalty under section 6(1) arising therefrom by its insertion therein is void and it has
been held so accordingly.
(3) Section 3-B has been declared void in its entirety.
(4) Section 3-C as explained, having outlived its purpose, is no more the subject-matter for any
further order.

(5) Section 6(1) in so far as it relates to and includes therein, the references to; "security of
Pakistan" and "the contravention of the provisions of section 3-A, is void.
However "Islamic ideology"; "morality"; and, "maintenance of public order" have been upheld; in the manner
explained in the relevant parts of the judgment.
(6) The remaining parts of section 6 including subsection (2) thereof have been upheld.
Except that the provision regarding the dissolution of a political party upon the "publication" referred in
subsection (1) has been held as void; subject of course, to the possibility of the re-enactment of a
provision regarding the same subject, which was indicated in the relevant part of the judgment, should not
offend against Article 17(2).
(7) Regarding, sections 7 and 8, it has been held that in view of the decision in respect of the
other provisions of the Act, it is for the legislature to amend them and nothing need be said about then-
vires, except for the comment made."
During the course of discussion in the case which preceded the final conclusion of the court reproduced above,
the existence of political parties in a democratic parliamentary system of Government, which was found to be
the feature of our Constitution, was fully acknowledged and recognized, and, accordingly, the provisions of
Political Parties Act, 1962, which were found to have affected the right of participation of political parties or
curtailed then- role, in the process of election were declared invalid on the touchstone of Article 17 of the
Constitution, which guaranteed freedom of Association. In my burnable view the Supreme Court in the above
case was examining the provisions of a sub-constitutional legislation which affected and curtailed the rights of a
political party to participate in the process of elections, in juxtaposition with the provision of Article 17 of
the Constitution, which guaranteed the right of Association, on a date when the said Article in the constitution
was fully operative on account of withdrawal of Martial I Law from the country and restoration of Fundamental
Rights. The observations of the Supreme Court in the above case, therefore, are to be interpreted and I
understood in the context of the controversy which was before the court. These I observations, in my humble
opinion, cannot be used as an authority for declaring j the partyless elections of 1985 as invalid. It is not
disputed before us that elections | in 1985 were held in the country when Fundamental Rights stood suspended.
The 1 elections of 1985 were held under P.O. 5 of 1977 as amended, which prevented Apolitical parties to
participate in the general elections in the capacity of political 'party. Therefore, holding of partyless elections of
1985 could at best be treated as 'violative of Article 17 of the Constitution, which at the relevant time
stood ; suspended and, therefore, no recourse was available to an aggrieved party to it. I jam therefore, of the
view that by arranging a partyless election in 1985 no 1 constitutional breach was committed and the
observations of Supreme Court in ; the case of Benazir Bhutto vs. Federation of Pakistan cannot be used
as an : authority for holding the elections of 1985 as invalid.
I now turn my attention to the observations of Shafiur Rehman J. in the case of Federation of
Pakistan vs. Muhammad Saifullah KJian which is mainstay of the arguments of petitioners. Firstly, I may
respectfully point out here, that 10 out of 12 learned Judges who constituted the bench in the above case shared
the views expressed hi the opinion of Nasim Hasan Shah, J. which did not contain the observations relied by
the learned counsel for the petitioner. Out of the remaining two learned Judges, Usman Ali Shah, J, did not
record any separate note but agreed with the opinion of Shafmr Rehman, J. It is, therefore, quite clear that
the observations made by Shafmr Rehman J, reproduced above, cannot be regarded as the opinion of full
court. The opinion of Shafiur Rehman J, in the circumstances, was the opinion of only two learned Judges
out of twelve who constituted the bench in the above case. Apart from it, as I earlier pointed out,
the observations of Shafiur Rehman J, relied by the petitioners are to be interpreted and understood hi the
context of the issue before the learned Judge. These observations were made by the learned Judge as one of the
considerations for not allowing restoration of Assemblies in exercise of discretionary power of the court under
Article 199 of the Constitution, inspite of the fact that the court had declared the dissolution of Assemblies
as unconstitutional. It may be mentioned here that insofar the dissolution of Assemblies on 29-5-1988 was
concerned, the full court, including Shafiur Rehman and Usman Ali Shah JJ., was unanimously of the view that
then- dissolution was illegal. In the above circumstances, in my humble view, it is not correct to argue that
in view of the above quoted observations of Shafiur Rehman J, in the case of Federation of
Pakistan vs. Mohammad Saifullah KJian, the partyless elections held in 1985 shall be deemd to have been
declared as invalid. On the contrary, I am of the view that the Supreme Court having unanimously held the
dissolution of Assemblies, which came into existence as a result of partyless elections of 1985, as Ulegal and
unconstitutional in the case of Federation of Pakistan vs. Mohammad Saifullah Khan, tacitly accepted their
validity, for only in the case of a validly constituted body its dissolution could be declared illegal and
unconstitutional.
The question of competency and validity of the Assemblies elected in the general elections of 1985, in my
humble view, otherwise, cannot be raised any further, in view of the decisions in the cases of Ghulam Mustafa
Khar vs. Pakistan (PLD 1988 Lah. 49=PLJ 1987 Lahore 669); Benazir Bhutto vs. Federation
of Pakistan (PLD 1988 SC 416) and Federation of Pakistan vs. Ghulam Mustafa Khar (PLD 1989 SC 26).
In the first noted case the question of validity and competency of Assemblies elected in 1985 was directly
raised before a bench of Lahore High Court consisting of five learned Judges of that court. Mohammad
Afzal Lone, J, who spoke for the court in the case dealt with the objections relating to validity and competency
of Assemblies elected in 1985 as follows:-
"64. Mr. Aitzaz Ahsan has raised another formidable objection and thrown a challenge to the competence of
the Parliament to pass the Constitution (Eighth Amendment) Act 1985 whereby Article 270-A
was incorporated in the Constitution. The first part of his argument is founded on the observations made
in Begum Nusrat Bhutto's case, requiring the Chief Marial Law Administrator to hold free and fair
elections, hi terms of the 1973 Constitution. It is contended that the present Parliament has been installed
through a process of election held on non-party basis, whereby the political compaign was
restricted, discussion on fundamental issues prohibited; by importation of arbitrary disqualifications of the
candidates, in the Election Laws, the categories of the candidates were limited; there was also a ban on
propogation of any meeting of public nature for seeking support in favour of any candidate was an offence
and, thus, it was practically made impossible for the candidates to project their view point before the public.
Resultantly, the candidates were elected on "Baradari Basis". It was pointed out that the Election Laws were
drastically amended to change the complexion of the election. In this behalf the learned counsel invited our
attention to the amendments made in the Representation of the People Act, 1976 and the Houses of Parliament
and Provincial Assemblies (Election) Order, 1977. It is not necessary to give here the details of such
amendments. Reference was also made by the learned counsel to Martial Law Regulations Nos. 33 and 48.
As a result of these Regulations, convassing or campaigning of policial parties was prohibited. In this view of
the matter the learned counsel concluded that the election, in consequence whereof the present Parliament
came into existence cannot be treated to have been held under 1973 Constitution. 65. 66.
67. The general elections, under challenge, were held under the Houses of Parliament and Provincial
Assemblies (Elelctions) Order, 1977. Article 24 of the Order, to which our attention has been drawn by the
learned Attorney General provides that the election held under the said Order "shall be deemed to have been
held under the Constitution and shall have effect accordingly1. This Article rather the Order itself, and
other connected laws were examined by the Supreme Court in Zulfiqar Ali Bhutto's case and it was held.
"................ It will be seen that from a persual of the Post-Proclamation Order No. 5 of 1977 read with Post-
Proclamation Order No. 4 of 1977, it becomes abundantly clear that the forthcoming elections are not covered
by any provision of the 1973 Constitution nor, indeed, could they be so covered as the situation arising in
March, 1977, in the wake of wide spread allegations of massive rigging of the elections, was
an unprecedented situation not within the contemplation of the Constitution. It was, therefore, necessasry to
make special provision for new elections, and the Post-Proclamation Order No. 5 of 1977 rightly recites that
these provisions were being made in an endeavour to restore the principles of democracy whereunder the State
of Pakistan exercises its power and authority through the chosen representatives of the people. It is in
the same spirit that Article 24 of the Order lays down that the elections held under this Order shall be
deemed to have been held under the Constitution and shall have effect accordingly. Without this deeming
provision the resulting Legislatures could not function under the 1973 Constitution, but to our mind the deeming
provision contained in Article 24 of this Order, cannot attract, in terms of the provisions contained in Chapter
1 of Part VIII of the Constitution relating to elections, as the elections are, in fact, not being held under that
Chapter. The deeming clause is to come into operation only after the elections have been held and the Prime
Minister etc. have been elected "
We feel that these observations furnish an effective answer to the petitioner's objection that the elections
were not held under 1973 Constitution. The elections have been held, Prime Minister elected and a Cabinet
formed. The country is being run by the civilian Government for the last over two and half years. Article
24 ibid, therefore, in terms of the Supreme Court Judgment, is operating with full force. Article 270-B of the
Constitution also ordains that elections held under the Houses of Parliament and Provincial Assemblies
(Elections) Orders, 1977 shall be deemed to have been held under the Constitution.
68....................
69. In February, 1985, when general elections were held, country had already endured Martial Law for more
than 7 and half years. It is true that during this period political activities through the medium of political parties,
and so also the public meetings and debates, which are so vital for proper working of a parliamentary
democracy in all possible areas, remained banned. The Fundamental Rights also remained
suspended. However, shortly before the elections, the Chief Martial Law Administrator made some
relaxation, inasmuch as under M.L.O. 102, promulgated on 12th of June, 1985 holding of close door meetings
close door conferences and publication of hand-bills for enlisting the support of the elections was permitted.
When the elections were held the country was passing through a very crucial stage of transfer of power from
a Martial Law Regime to a civilian Government. The law promulgated and measures adopted by the Chief
Martial Law Administrator, for holding the elections, need be examined in this background. As per dictum of
the Supreme Court in Zulfiqar Ali Bhutto's case this Court cannot substitute its opinion as to the arrangements
made by the Chief Martial Law Administrator for holding the elections and all that is to be seen, is that such
arrangements should reasonably fall within the objectives of the Martial Law. Speaking broadly the elections
were held in an atmosphele . not charged with any upheaval and civil strife. The consent of the governed is
the foundation of the democratic Institutions. It can well be said that such a consent was adequately conveyed
by the people during the general elections and can constitute an implied mandate."
The appeal against the above order of Lahore High Court filed before the Supreme Court by the Federation of
Pakistan was dismissed and the order passed by the Lahore High Court was maintained. The decision of
Supreme Court in appeal is reported as Federation of Pakistan Vs. Ghulam Mustafa Niar. The learned
counsel for the petitioners, however jointly contended that the question regarding competency of parliament
was left open by the Supreme Court, in the case of Federation of Pakistan Vs. Mohammad Saifullah Khan and
in support of their contention they relied on the following observations of the court:
"16. During the course of hearing of these matters, Mr. Abdul Mujib Peerzada, who appeared for the
petitioner in C.P.S.LA. No. 429-K of 1981, raised the plea that the Parliament was not competent to
enact Article 270-A, but then all the learned counsel agreed to keep this aspect of the matter out of
consideration for the time being and thus no elaborate arguments were addressed on this plea. I would
therefore refrain from expressing any views on it."
The learned counsel for the petitioners while relying on the above quoted observations overlooked the
observations made in the same case in pa/agraph 19 which are as follows:
"19. So far as the question relating to the validity of the laws and the competency of the makers thereof is
concerned, there can be no quarrel with the proposition convassed by the learned Attorney General. By
declaring that all laws, brought on the statute book during the period of the Martial Law, had been made
validly and by a competent authority, and, further by adopting and affirming the same the intention of the
Parliament clearly was to obviate all possible objections with regard to theu: validity or the competency of the
markers thereof and save them from challenge in Courts on these grounds. Neither the Sind High Court nor
the Lahore High Court took a contrary view on this part of the learned Attorney General's argument. But
then in the matters before us we are not concerned with the validity of the said laws or the competency of the
makers thereof-or for that matter, with their future operation after the revival of the Constitution. These
questions were "raised and dealt with in another judgment of this Court which has been reported as Benazir
Bhutto v. Federation of Pakistan (PLD 1988 SC 416). On the other hand, the issue before us is of a limited
nature, that is, whether at all, and if so, to what extent the acts, actions and proceedings done, taken or held
while the Martial Law was in force, can be reviewed by the Superior Courts in exercise of the Constitutional
jurisdiction after the lifting of the Martial Law and the revival of the Constitution."
I may here also respectfully quote the relevant passages from the leading judgment of Mojiammad Haleem C.J.,
in the case of Benazir Bhutto vs. Federation of Pakistan which is referred in the above quoted passage and which
dealt with the question of competency of legislature which enacted Article 270-A in the Constitution. The
first relevant observations appear at page 498 of the report reads as under:-
"As to the scope, content and meaning of Article 270-A(1) of the Constitution, the formulation of the learned
counsel for the petitioner has been stated earlier and in a nutshell is that beyond giving competence and validity
to the legal instruments and laws it does not preserve or continue the effect of the laws repealed. And as for
those, saved they are open to attack on the ground of being violative of the Fundamental Rights or being
inconsistent with any other provision of the Constitution. On the other hand, the learned Attorney General
contended that the validity granted under Article 270-A(1) is not merely confined to removing the taint in the
maker of the law but also validated the contents of the law itself so as not to be amenable to any attack on
the ground of its being violative of the Fundamental Rights or inconsistent with any provision of the
Constitution."
The above quoted passage fully reflects the rival contentions of the parties before the court. After the above
quoted passage a detailed discussion about the legislative background of enactment of Article 270-A of the
Constitution follows in the case and thereafter the following observations appear at pages 502 to 504 of the
report:
"It is worthy to note that the judgment in Asma Jillani's case was rendered after the de facto abrogation of
the 1962 Constitution while the Martial Law was in force, and, accordingly, by declaring General Yahya Khan
to be a usurper all his legislative measures were declared to be void ab initio except those which stood the test
of condonation. In Begum Nusrat Bhutto's case the position was different as the 1973 Constitution was held to
be the supreme law of the land subject to certain parts thereof to have been held to be in abeyance on account
of State necessity. This being so the power to promulgate legal measures within the scope of the law of
necessity was conferred on the Chief Martial Law Administrator including the power to amend the
Constitution. This power was exercised from time to time to amend the Constitution.
Those amendments which need specific mention are: firstly, the power of judicial review which was saved in
Begum Nusrat Bhutto's case was eroded by the insertion of Article 212-A by the Constitution
(Second Amendment) Order, 1979 (P.O. 21 of 1979) with effect from 5th July, 1977; and, secondly by the
Constitution (Amendment) Order 1980 (P.O. 1 of 1980), promulgated on 27-5-1980, Article 199 was amended
by inserting Article 3-A in it which not only neutralized the effect of the judgment of this Court in Begum
Nusrat Bhutto's case but also placed further restrictions on the exercise of judicial power. This Order
also provided for the creation of the Federal Shariat Court; the powers, jurisdiction and functions to be
exercised by it and also the persons to be appointed as members of the Court including the Chairman and
their qualifications.
Next to follow was the Provisional Constitution Order, 1981 (CMLA's Order 1 of 1981) which was
promulgated on 24th of March, 1981 as an interim measure as the President and the Chief Martial
Law Administrator felt satisfied "that it is necessary to make adequate interim provisions for governing
Pakistan in accordance with this Order and for the removal of doubts and for consolidating and declaring the
Law and for effectively meeting the threat to the integrity and sovereignty of Pakistan and its Islamic
ideology. By Article 2 of this Order certain Constitutional provisions including Article 4 were saved and became
part of the Order but their operation was made subject to this Order or any other Order made by the
President or the Chief Martial Law Administrator. Significantly Article 238 which gave power to the
President to amend the Constitution was kept in abeyance and not included in the Provisional Constitution
Order. However, by Article 16 of this Order, the President gave to himself the power to amend
the Constitution while nullifying the effect of the judgment in Begum Nusrat Bhutto's case in Article 15 of the
Order.
The most important legal instrument which follows hereafter is the Revival of the Constitution of 1973 Order,
1985 (P.O. 14 of 1985), which was promulgated on 2nd of March, 1985. Although this Order came into force
at once but by Article 4, its revival was deferred to such dates on which the President was authorised, by
notification to revive its different provisions. Again by Article 5 of this Order, the President was authorised to
make such provisions and pass such orders in case any difficulty arose in giving effect to any of the provisions
of this Order. However, by Article 2 of this Order extensive amendments were made in the 1973 Constitution,
including the insertion of Article 270-A. By notification issued under Article 4 of the Order on 10th of March,
1985, provisions other than Articles 6, 8 to 28, clauses (2) and 2(A) of Article 101, Articles 199, 213 to 216 and
270-A were revived. By Constitution (Second Amendment) Order, 1985 (P.O. 20 of 1985), promulgated on 17-3-
1985, amongst certain other amendments clause (6) of Article 270-A was substituted for the following "(6)
The President's Orders referred to in clause (1) shall not be altered, repealed or amended without
the previous sanction of the President". • The earlier text of this clause was "Any of the President's Orders
referred to in clause (1) may be amended in the manner provided for amendment of the Constitution". On the
19th of March, 1985, Constitution (Third Amendment) Order, 1985 (President's Order 24 of 1985) was
promulgated. Thereafter on llth of November, 1985, Constitution (Eighth Amendment) Act, 1985, was
promulgated which came into force at once except section 19 which was to take effect on the date on which the
Proclamation of the fifth day of July, 1977 was revoked. This Article related to the substitution of Article 270-A
of the Constitution as enacted by the Majlis-e-Shoora for that earlier inserted by the President in the Revival of
the Constitution of 1973 Order, 1985 (President's Order 14 of 1985) and a new Schedule called the Seventh
Schedule was added by section 20.:
The next relevant observation in the case is at pages 506 to 508 of the report which read as under: -
In Asma Jillani's case since the maker of the legislative measures was held to be the usurper, condonation was
given in particular to all acts and legislative measures which were in accordance with or could have been made
under the abrogated Constitution or the previous legal order. Similarly Begum Nusrat Bhutto's case authorised
the Chief Martial Law Administrator not only to promulgate Presidential Orders, Ordinances, Martial Law
Regulations or Orders but also to enact legislative measures which were in accordance with or could have been
made under the 1973 Constitution including the power to amend it in the background that the 1973 Constitution
continued to be the supreme law of the land subject to its certain parts having been held to be in abeyance on
account of State necessity. In the first case the criterion was principle of condonation and in the second case,
State necessity. However, upon the promulgation of the Provisional Constitution Order, the judgment in the
case of Begum Nusrat Bhutto was nullified and a new order came in the field. However, the pattern of
legislation was that the power was derived from the proclamation of the fifth day of July, 1977 read with
the Laws (Continuance in Force) Order, 1977. By the proviso to Article 270-A(1) (Constitution Eighth
Amendment Act, 1985), the President and the Chief Martial Administrator was authorised only to enact such
legal measures which served the purpose mentioned therein. Therefore, protection had to be given firstly, to
the legal measures including the Martial Law Regulations and Martial Law Orders which followed the pattern
of legal measures in Zia-ur-Rehman's case. Secondly, to such Constitutional amendments as were made on the
touchstone of State necessity. Thirdly, such amendments as were made after the promulgation of the
Provisional Constitution Order which superseded Begum Nusrat Bhutto's case and rendered it ineffective. And
fourthly, to the legal measures made for the purpose mentioned in the proviso to Article 270-A(l). However,
the added feature here is that the constitutional amendments also needed protection for which a different
procedure is prescribed by Article 238 of - ' the 1973 Constitution. Therefore, not only the effect of the
judgment in
Begum Nusrat Bhutto' case had to be nullified but also constitutional validity had to be given to the legal
measures both as regards their content and the power exercised in enacting them. In this respect I find no
distinction between this case and that of Zia-ur-Rehman. But as no constitutional amendment was involved
which needed protection, therefore, there was no mention of the expression "notwithstanding anything
contained in the Constitution" in Article 280(1) and all that was needed to be cared for was the judgment in
Asma Jillani's case in regard to which the expression "notwithstanding any judgment" was used.
Now comparing the earlier Articles namely Article 281(1) of the Interim Constitution arid Article 269(1) of
the 1973 Constitution with Article 270-A(1) of the 1973 Constitution, the change in terminology is in
_ respect; firstly, that in the earlier two constitutional provisions the word "declared" was .used
before the words "notwithstanding any judgment of any Court" but in Article 270-A(l) the additional words
"affirmed" and "adopted" are added after the word "hereby" and before the word "declared"; and secondly,
the expression namely "notwithstanding anything contained in the Constitution" is inserted before the
expression "shall not be called in question in any Court on any ground whatsoever". These specific words and
expression were not hitherto interpreted by this Court owing to the terminology being different in this respect.
Reading Article 270-A(1), I find that it is in two parts joined together by the conjunctive "and". The first part
deals with the proclamation of the fifth day of July, 1977, legal instruments and all legal measures including
Martial Law Regulations and Martial Law Orders made between the specified dates which are hereby
affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made
by *- competent authority" and the second part deals with the ouster of the jurisdiction of Courts
in terms: "notwithstanding anything contained in the Constitution, shall not be called in question in any
Court on any ground whatsoever." dverting to the first part, it will be necessary to examine the meaning of
•{he specific words used in the constitutional provision. In' Ballentine's Law Dictionary, Third Ed., page 36,
the word "adopt" is defined to mean "to approve, to take as one's own that which was not so before". In
Black's Law Dictionary, Fifth Edition, page 45, it means "to make that one's own act which was not so
originally, to accept; consent to and put into effective operation; as in the case of constitutional amendment,
ordinance, Court rule, or by-law". In Chamber's Twentieth Century Dictionary at page 16, "adopt" means "to
take as ones own, to endorse, approve". The word "affirm" in the Chamber's Twentieth Century Dictionary
is defined at page 20 to mean: "to assert confidently or positively, to ratify (a judgment); to confirm or stand
by". In Black's Law Dictionary, Fifth Edition at page 55 this word k defined to convey the meaning: "to
ratify, make firm, to make a solemn and formal declaration". In Ballentine's Law Dictionary, Third Edition
at page 46, this word carries the same meaning, i.e. "to declare solemnly, to confirm or ratify a statement,
belief, opinion, decision or judgment". The word "declared" was also used in the earlier constitutional
provisions and also in this provision. It means "to make known, manifest; to announce dearly some opinion or
resolution". (Black's Law Dictionary, Fifth Edition at page 368).
Having regard to the meanings which the words "affirm" "adopt" and "declare" convey, it is manifest that the
legislature owned the legal instruments and legal measures made between the specified dates as if enacted by
itself so as to give validity and competency to those legal instruments and measures. The principle of ratification
was here adopted and such validity and competency was proclaimed. This principle belongs to the realm of the
law of agency: "In the law of principal and agent, the adoption and confirmation by one person with knowledge
of all material facts, of an act or contract performed or entered into in his behalf by another who at the time
assumed without authority to act as his agent. Essence of "ratification" by principal of act of agent is
manifestation of mental determination by principal to affirm the act, and this may be manifested by
written word " (See Black's Law Dictionary, Fifth Edition, P. 1135). In this respect there was a
departure from the protection earner given by the two constitutional provisions, namely Article 281(1) of
the Interim Constitution and Article 269(1) of the 1973 Constitution.
The next expression in this part which needs consideration is "notwithstanding any judgment of any Court".
Obviously this expression could not have any reference to Asma Jillani's case as its effect was taken away by
Article 281(1) of the Interim Constitution (see Zia-ur-Rehman's case) and it could only refer to Begum Nusrat
Bhutto's case hi which the 1973 Constitution was held to be the supreme law of the land subject to certain
portions having been held in abeyance and the Chief Martial Law Administrator to have validly assumed power
by means of extra-Constitutional steps in the interest of the State and for the welfare of the people. But
subsequently this judgment was superseded by the Provisional Constitution Order and its effect was therein
nullified. It was, therefore, to avoid the effect of that judgment after the lifting of the Martial Law and the
revocation of the Provisional Constitution Order and the Laws (Continuance in Force) Order, 1977, that the
expression "notwithstanding any judgment of any Court" was again used.
Coming now to the second part, the non obstante expression "notwithstanding anything contained in the
Constitution" in the context in which it occurs is equivalent to saying that the provisions of the Constitution
shall not be an impediment in ousting the jurisdiction of the Court qua the validity and competency of the legal
measures. While on one hand by this device the legislature has chosen to give wholesale validity and
competency to the said legal measures as if it had enacted them and on the other by neutralising the
constitutional impediments so as to render them immune from any attack on their validity and competency
on any ground whatsoever. Having held so, the dictum laid down in Saeed Ahmad's case will be fully
applicable. The ouster of jurisdiction to strike off the laws the Court is left with no jurisdiction to strike off the
laws without, in any way, affecting the judicial power to interpret the constitutional provision, which cannot be
denied so long as the Court exists. Here I would add the admirable words of Chief Justice Hughes of the
Supreme Court of United States of America: "We are under a Constitution, but the Constitution is what the
judges say it is " (Columbia Law Review, Volume 49,p.201).
It is difficult to confine the expression "notwithstanding anything contained in the Constitution" only to the maker
of the legal measures as contended by the learned counsel for the Petitioner. This constitutional provision has
to be read as a whole and both its parts have to be harmonised to give full meaning and effect to it."
The above discussion leaves no room for any doubt in my mind that the Assemblies elected in 1985
were legally and validly constituted.
This brings me to the next question, namely, whether the Eighth Amendment passed by the
parliament elected in 1985 was valid or it was invalid for the reason that it was not passed according to the
procedure prescribed under P.O. No.14 of 1985 and that the amendments introduced in the Constitution
by the Eighth Amendment altered/changed the basic structure of the Constitution. I will take up the later part
of the controversy first as it is common contention of the petitioners in the above cases and is also supported
by learned Attorney General and Deputy Attorney General.
 According to learned counsel for the petitioners as well as learned Attorney General and DA.G the basic
features of the Constitution are; (1) its Federal nature with a parliamentary system of Government; its
Islamic character; trichotomy of powers 'between the three Organs of the State namely, the legislature,
judiciary and the executive; preservation of human rights and dignity in the form of Fundamental Rights. The
learned counsel for the petitioners contended that the Eighth Amendment in the Constitution seriously
eroded its parliamentary features which is the basic structure of the Constitution. It is urged that under the
Constitution, as it originally stood, the President of Pakistan ^as only a figure head of the Federation as is
usual in a parliamentary system of Government but under the Eighth Amendment, the powers of President
have been enhanced to such an extent that now he can over rule and by pass: the advice of Prime Minister in
many constitutional matters by exercising his discretion. The learned Attorney General contended that after the
passing of Eighth Amendment in the Constitution there is such a concentration of power in an individual that
the President is now even free to dissolve an elected body like the parliament at his discretion and whims. This
concentration of power in an individual according to learned Attorney General is opposed to Islamic concept of
polity which is a basic feature of the constitution. The learned Attorney General pointed out that objectives
resolution which is incorporated in the preamble of the constitution and is also now an operative part of it, in
Article 2-A, declares that Sovereignty over the entire universe belongs to "Allah" and the authority to be
exercised by the people of Pakistan within the limits prescribed by "Allah" is a sacred trust. It further declares
that the State shall exercise its power and authority through the chosen representatives of the people, while
under the Eighth Amendment, an individual has been vested with all the powers, which is negation of
basic principles of our Constitution as enshrined in the objectives resolution. In this connection the learned
Attorney General made reference to clause (7) of Article 41, amendment of Article 46, proviso to clause (1)
and clauses (2), (3), (5) to (7) of Article 48, clauses (2), (3), (4) of Article 56, clause 2 and sub-clause 2(b)
of Article 58, Article 90, Article 91(2) and (5), Article 94, clause (5) and (6) of Article 239, clause (1-A) of
Article 242 and clauses (1-A) and (2) and sub-clauses thereof of Article 243 and further stated that it is not
possible here to refer and examine all amendments introduced in the Constitution by the
Eighth Amendment. The learned counsel for the Petitioners also referred to some ofthe amendments in the
constitution introduced by the Eighth Amendment, besides those referred by the learned Attorney General, in
support of their contentions.
I do not intend here to make any critical or detailed examination of the amendments introduced in
the Constitution by the Eighth Amendment and determine their effect on the parliamentary system of
Government or the concept of Islamic polity. However, from the arguments of learned counsel for
the petitioners and the learned Attorney General, it is quite clear that then- objection to the validity of these
amendments rests mainly on the ground that these j amendments have the effect of either concentrating
arbitrary powers in the hands of an individual or that the balance of the power which was in favour of
Prime (Minister under the Constitution, as it originally stood, has now titled in favour of {President. In my
humble opinion these controversies are more of a political nature than to be treated as a legal controversy.
Neither the learned1 counsel for I the petitioners, nor the learned Attorney General, was able to point out
finy j objective legal standards on which such controversies could, be resolved by courts of law. It cannot be
ignored that a duly elected Government is functioning in the country both in centre and in the provinces. It
also appeared from jjie reports i appearing in national press from time to time thaf the Government in
centre is ! trying to enter into a meaningful dialogue with the opposition^ parties to. j sting out of Eighth
Amendment. The validity of the assuni^o^ of [President by Mr. Ghulam Ishaque Khan on the death of
General fZiaul Haq pn;r7-8-198&and his subsequent election to the pfgce;bjf I the basis, of amended
constitution is not challenged, by anyoneij | petitioners. The President, Prime Minister, Federal Ministers,
^nl Speaker and Deputy Speaker of National Assembly, Chairman and Deputy' Chairman of Senate,
members of National Assembly, Governors of Provinces, \ Chief Ministers of provinces and Provincial
Ministers, members of Provincial; Assemblies and Judges of superior courts, all have taken Oath under the
j Constitution as amended by Eighth Amendment, and are functioning nder it.| There is no clog on the power
of parliament to amend those Constitutional 1 provisions which are considered undesirable for smooth
functioning of! parliamentary Government. In these circumstances, I am unable to agree with the? learned
Attorney General and the counsel for the petitioners that the Eighth; Amendment has changed the basic
structure of the Constitution or that on; account of amendments introduced in the Constitution by the
"Eighth; Amendment", the working of a parliamentary system of Government under the; Constitution has
become impossible.
The argument of the learned counsel for the petitioners that • a constitutional amendment which has the effect
of changing/altering the basic structure of the Constitution, can be declared invalid by superior courts
otherwise cannot be accepted as it is based on the rule enunciated by the Indian Supreme Court in the famous
case of Golak Nath (AIR 1967 SC 1643) and later modified in Kesavanandir's case (AIR 1973 SC 1461)
and Minerva Mills case (AIR 1980 SC 1789). This rule enunciated in the above referred cases by the Indian
Supreme Court has not been approved by our Supreme Court. In the case of State vs.Ziaur Rehman (PLD 1973
SC 49), Hamoodur Rehman C.J., while examining the scope of authority of superior courts in Pakistan to strike
down a constitutional provision observed as follows:"So far, therefore, as this Court is concerned it has never
claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It
has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions
from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has
taken path to protect and preserve but it does claim and has always claimed that it has the right to interpret
the Constitution and to say as to what a particular provision of the Constitution means or does not mean,
even if that particular provision is a provision seeking to oust the jurisdiction of this Court."
In the same case the learned Chief Justice while pointing out difference between the "jurisdiction" and "judicial
power" observed as under at page 70 of the report:
"In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only
as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void,
it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but
because the Constitution has .vested it with the power to declare what the law is in the cases which come
before it. It thus merely enforces the Constitution as paramount law whenever a legislative enactment comes
into conflict with U because, it is its duty to see that the Constitution prevails. It is only'.when the Legislature
fails to keep within its own Constitutional (ljmits, the judiciary steps in to enforce compliance with the
Constitution. This is no doubt a delicate task as pointed out in the case of Fazul Quader Chowdhuty v. Shah
Nawaz, which has to be performed with great circumspection but it has nevertheless to be performed as a
sacred Constitutional duty when other State functionaries disregard the limitations imposed: upon diem or
claim to exercise power which the people have been careful to withhold from them.
On the other hand it is equally important to remember that it is not the function of the judiciary to legislate or
to question the wisdom of the Legislature in making a particular law if it has made it competently without
transgressing the limitations of the Constitution. Again if a law has been competently and validly made the
judiciary cannot refuse to enforce it even if the result of it be to nullify its own decisions. The Legislature has
also every right to change, amend or clarify the law if the judiciary has found that the language used by the
Legislature conveys an intent different from that which was sought to be conveyed by it. The Legislature which
establishes a particular Court may also, if it so desires, abolish it."
The final analysis with regard to the power of the superior courts to strike down a constitutional provision was
stated by the learned Chief Justice ia Ziaur Rehman's case in these words:
"Having said this much about the constitutional position of the Courts and their relationship with the other
equally important organ of the State, namely; the Legislature, it is now necessary to examine as to whether
any document other than the Constitution itself can be given a similar or higher status or whether the
judiciary can, in the exercise of its judicial power, strike down any provision of the Constitution itself
either, because, it is in conflict with the laws of God or of nature or of morality or some other solemn
declaration which the people themselves may have adopted for indicating the form of Government they
wish to be established. I for my part cannot conceive of a situation, in which, after a formal written
Constitution has been lawfully adopted by a competent body and has been generally accepted by the people
including the judiciary as the Constitution of the country, the judiciary can claim to declare any of its
provisions ultra vires or void. This will be no part of its function of interpretation. Therefore, in my view,
however solemn or sacrosanct a document, if it is not incorporated in the Constitution or does not form a
part thereof it cannot control the Constitution. At any rate, the Courts created under the Constitution will not
have the power to declare any provision of the constitution itself as being in violation of such a document. If
in fact that document contains the expression of the will of the vast majority of the people, then the remedy
for correcting such a violation will lie with the people and not with the judiciary. It follows from this that
under our own system too , the Objectives , Resolution of 1949, even though it is a document which
has been generally accepted and has never been repealed or renounced, will not have the same status or
authority as the Constitution itself until k is incorporated within it or made part of it. If it appears only as a
preamble to the Constitution, then it will serve the same purpose as any other preamble serves, namely,
that in the case of any doubt as to the intent of the law-maker, it may be looked at to ascertain the true intent,
but it cannot control the substantive provisions thereof. This does not, however, mean that the validity of no
Constitutional measures can be tested in the Courts. If a Constitutional measure is adopted in a manner
different to that prescribed in the Constitution itself or is passed by a lesser number of votes than those
specified in the Constitution then the validity of such a measure may well be questioned and adjudicated upon.
This, however, will be possible only in the case of a Constitutional amendment but generally not in the case
of a first or a new Constitution, unless the powers of the Constitution-making body itself are limited by some
supra-Constitutional document."The rule laid down in Ziaur Rehman's case was reaffirmed in the case
of Islamic Republic of Pakistan vs. Abdul Wall Khan (PLD 1976 SC 57) as 'follows by Mohammad Gul, J:-
"It will be convenient to deal with the vires of constitutionality of section 6 of Act as amended at this stage. Mr.
Sharifuddin Pirzada, learned Arnicas curiae, who addressed the Court on the Law points only, stated at
the outset that clause (2) of Article 17 of the Constitution as substituted by Act XIII of 1974 was perfectly
constitutional. He thought 'it necessary to make that statement, because of the doubt created by the
majority judgment in Golak Nath's case (1) decided in Indian jurisdiction, though the majority view in that case
was modified by the majority judgment ot;a larger Bench in the later case of Kasavnuda (2). It is unnecessary to
refer to the ratio decidendi of the conflicting views in these two cases, ibecause so far as this country is
concerned, the law is firmly laid down by this Court in Zia-ur-Rehman's case (3) that a constitutional
amendment cannot be challenged on the ground of being "repugnant to what are stated as national
aspirations", so long as the amendment k duly passed b accordance with the procedure laid down by the
Constitution."
Again in the case of Federation of Pakistan Vs. United Sugar Milts Ltd. (PLD 1977 SC 397) the rule laid down
in Zia-ur-Rehman's case was reiterated as follows by Mohammad Gul, J:-
This brings me to consider the first limb of argument of learned counsel for the petitioner concerning the vires
of the two provisions of the Amending Act set out in the beginning. Learned counsel however, did not assail the
amendments on the larger ground as was done in Golaknath's case (1) decided in the Indian Jurisdiction. In that
case a narrowly divided. Supreme Court ruled that the Indian Parliament lacked the power to amend Part III
of the Indian Constitution which provides for Fundamental Rights. However, the majority view in that
case was modified later in the case of Kasavnuda (2) again by a narrow majority. In Pakistan, this Court in the
case of Ziaur Rehman (3) has, however, firmly laid down the principle that a constitutional provision cannot
be challenged on the ground of bring repugnant to what are sometimes stated as "national inspirations" or an
"abstract concept" so long as the provision is passed by the competent Legislature in accordance with
the procedure laid down by the Constitution or a supra constitutional instrument."In the case of Fauji
Foundation Vs. Shamimur Rehman (PLD 1983 SC 457) Mohammad Haleem C.J. quoted the opinion of
Mohammad Gul, J, in the case of Federation of Pakistan Vs. United Sugar Mills Ltd. with approval hi paragraphs
189 and 190 of the judgment which reads as under:-"189. The distinction spelled out in the case of Piare
Dusadh would still be applicable for the non-applicability of the doctrine to our constitutions.
In Federation of Pakistan Vs. United Sugar Mills Ltd (5), the addition of clause 4(2) to Article 199 of the
Constitution by section 8 clause (b) of the Constitution (Fourth Amendment) Act, 1975, which was challenged
on the ground that it violated the separation of powers as it amounted to an inroad in the judicial power of the
High Court. This Court firmly held that the vires of the Act could not be thrown overboard as this doctrine was
not applicable to our constitutions. In holding so Muhammad Gul, J., spoke for the Court and observed at page
411:
"It is also important to observe that our Constitution, like many other modern written Constitutions, does
not provide for rigid separation of powers. Indeed there is no direct provision in that behalf except that
the Constitution by various provisions provides for the setting up of the principal institutions for the
exercise of the sovereign powers of the State in the appointed field. In actual practice in all modern
Governments, separation is only functional to subserve the practical necessity of an efficient .and
enlightened Government by providing for checks and balances to avoid abuse of public power. Nowhere,
so far as I am aware, the principle is pushed to its logical conclusion so as to create
watertight compartments within the Government."
190. Fundamentally the Court adopted the dictum in Zia-ur-Rehman's case: That a constitutional
provision cannot be challenged on the ground of being repugnant to what are sometimes stated as "notional
aspirations" or an "abstract concept" so long as the provision is passed ;by the competent Legislature in
accordance with the procedure laid down by the constitution or a supra-constitutional instrument. This
Court accordingly distinguished Golak Nath's case (6), on the above premise, decided by a majority of 6 to
5 that the Indian Parliament lacked the power to amend Part HI of the Indian Constitution which provides
for the fundamental rights."
(in view of these clear pronouncements of Supreme Court I am of the view that a constitutional amendment
cannot be brought under challenge before the High Ai\ Court under Article 199 of the Constitution on the
ground that it had the effect of ! changing/altering the basic structure of the constitution.
The learned counsel for. the petitioner in Petition No. 168/89 raised an additional argument that the
Eighth Amendment was also invalid for the reason that it was not passed in accordance with the provisions
of Article 239 which was introduced in the Constitution by R.C.O. (P;O. 14 of 1985). The argument of
the learned counsel is based on an assumption that with the promulgation of P.O. No.14 of 1985, the
power vested in General Mohammad Ziaul Haq was exhausted and as such promulgation of P.O. 20 of 1985
subsequently, which substituted the present Article 239 in the Constitution was unauthorised. P.O. 14 of
1985 was issued on 2nd March, 1985 by the President in exercise of his powers under the proclamation of
5th July, 1977. The subsequent President Order No. 20 of 1985 was also issued on 17-3-1985 in pursuance
of the power derived by the President under the Proclamation of 5th July, 1977. The proclamation of 5th of
July, 1977 was revoked by the President on 30-12-1985. It is, therefore, quite clear that so long the
proclamation of 5th July, 1977 was in the field and the power was available thereunder, no exception
could be taken to issuance of any President Order which either provided for something new or amended
an existing state of law. It may be mentioned here that after promulgation of P.O. No. 20 of 1985,
the CMLA issued Martial Law Order No. 107 on 29-12-1985 immediately before revocation of
proclamation of 5th July, 1977. The effectiveness of MLO was considered at length in the case
of Federation of Pakistan Vs. Ghutam Mustafa Khar (PLD 1989 SC 26) and full effect was given to it. I
therefore, see no force in the contention of the learned counsel.
While still on the issue of validity of Eighth Amendment, I may dispose of one more contention raised by
the petitioner in C.P. No. 163 of 1989. According to petitioner in this case, the power to amend the
Constitution during the period Martial Law was enforced in the country, exclusively vested in the C.M.LA. by
virtue of the decision of Supreme Court in the case of Begum Nusrat Bhutto Vs. Chief of the Army Staff and
another. It is accordingly contended that this power could not be delegated by the CMLA to any other body
and as such the Eighth Amendment bill passed by the Parliament while the Martial Law was still enforced
in the country was wholly invalid. The argument of the petitioner is based on a misconception that the power
to amend the Constitution was derived by the CMLA/President under the decision of Supreme Court in the
case of Begum Nusrat Bhutto. The effect of the decision in the case of Begum Nusrat Bhutto was displaced
by the Provisional Constitution Order of 1981 which was promulgated on 24-3-1981, and validity whereof was
recognized by all the courts in Pakistan including the Supreme Court. It is, therefore, quite clear that as
and from 24-3-1981, all powers were derived by the CMLA/President under the, P.C.O. of 1981 and the
Proclamation of 5th July, 1977. Article 16 of P.C.O. was as follows: -
"16. Power to amend Constitution:-
The President as well as Chief Martial Law Administrator shall have, and shall be deemed always to have
had the power to amend the Constitution."
On 2nd March, 1985, Revival of the Constitution of 1973 Order 1985 (P.O. 14 of 1985) was promulgated by
the President, Article 4 whereof provides that the provisions of the Constitution as amended by P.O. 14 of 1985
shall stand revived on such day as the President may, by notification in the Official Gazette, appoint, and
different day may be so appointed in respect of different provisions. On the date P.O. 14 of 1985 was
promulgated, members of National and Provincial Assemblies were already elected. The notification under
Article 4 of P.O. 14 of 1985 was issued by the President on 10-3-1985 which revived the provisions of
the Constitution as amended, except Articles 6, 8 to 28 (both inclusive) clause (2) and 2(a) of Article 101,
Articles 199, 213 to 216 (both inclusive) and 270-A. It is therefore, quite clear that Provisions in the
Constitution relating to National and Provincial Assemblies were hi full force and operation as and from 10-3-
1985 and as such the National and Provincial Assemblies could legally function from this date. The
Constitution was further amended on 17-3-1985 and 19-3-1985 by two Presidential Orders namely P.O. 20 and
P.O. 24 of 1985 respectively. The joint session of Parliament was held on 23-3-1985 and the Eighth Amendment
bill was introduced on 8-9-1985 which was later withdrawn. It was again introduced in the Parliament on 30-9-
1985 and was passed on 16-9-1985. It was also passed by the Senate on 28-10-1985 and having received the
assent of President on 9-11-1985 became part of Constitution. Thereafter, Martial Law was lifted from the
country on 30-12-1985. It will thus be seen that from 2-3-1985 till the lifting of Martial Law on 30-12-1985, the
country was passing through a transitory phase in which preparations were being made to switch over to
Constitution Government from Rule of Martial Law. In these circumstances, when the new order was
displacing the old one, the possibility of both the dispensations being enforced in the country simultaneously at
some point of time during the transition could not be avoided. In these circumstances, no objection, could be
taken to the passing of the Eighth Amendment by the Parliament, while the Martial Law was still enforced in
the country. After all a valid order had to come into existence before power could be transferred by the military
dictator to the Civilian Government. I therefore see no force in the contention of petitioner in C.P. No. 163 of
1989.
Before ending the discussion on the validity of Eighth Amendment, one more aspect needs to be mentioned
here, which, in my opinion is nqt only important but goes to the root of the controversy. On 31st December,
1985 all the Judges of this court took Oath under the Constitution which stood amended by the Eighth
Amendment. None of the present Judges of this court had taken the Oath under the Constitution as it stood
before its amendment by the Eighth AN Amendment. In these circumstances, the Oath taken by the Judges
of this court was for all practical purposes an Oath under the first or a new Constitution and as such they
cannot declare any part of this Constitution as invalid after having taken the Oath to defend it. This, however,
will not apply to any constitutional amendment which may be made in the Constitution after 31-12-1985. I
am fortified in my above conclusion by the following observations of Hamoodur Rehman C.J. in the case
of State Vs. Ziaur Rehman.
"This does not, however, mean that the validity of no Constitutional measure can be tested in the Courts. If a
Constitutional measure is adopted in a manner different to that prescribed in the Constitution itself or is
passed by a lesser number of votes than those specified in the Constitution then the validity of such a measure
may well be questioned and adjudicated upon. This, however, will be possible only in the case of a Constitutional
amendment but generally not in the case of a first or a new Constitution, unless the powers of the Constitution-
making body itself are limited by some supra-Constitutional documents."
One more contention jointly raised by the learned counsel for the Petitioners which has not been considered so
far is, that late General Ziaul Haq was not a duly elected President and as such he was not competent to
give assent to the Eighth Amendment Bill. The argument proceeds on the basis that Referendum of 1984
which installed General Ziaul Haq in the office of Presidency was invalid. In my view this controversy can be
decided without going into the validity or otherwise of the Referendum of 1984. Late General Ziaul Haq,
admittedly assumed the office of Presidency on the resignation of Mr. Fazal Ellahi, under President's
Succession Order (P.O. 13 of 1978). Article 4(1) of P.O. 13 of 1978 provided that if the CMLA is the President
he shall hold office until a President is elected in accordance with the Constitution. The assumption of the
office of Presidency by General Ziaul Haq and the vires of P.O. 13 of 1978 were challenged before the Lahore
High Court in the case of Ghulam Jillani Vs. Province of Punjab (Supra) but it was upheld. Therefore on 9-
11-1985 when General Ziaul Haq gave his assent to the Eighth Amendment Bill he was fully competent.
A somewhat similar contention though in a different form was also raised before the Supreme Court in the case
of Federation of Pakistan Vs. Ghulam Mustafa Kfiar but it was repelled as follows: -
"15. It will be appropriate at this stage to take notice of a contention raised by Mr. U. Niamat Moulvi who
appeared on behalf of the Appellant in Civil Appeal No. 285 of 1987. He argued that the Constitution
(Eighth Amendment) Act, No. 18 of 1985, which introduced Article 270-A in the Constitution was still a Bill
and not an Act of Parliament and for that technical reason it did not form part of the Constitution. While
elaborating his contention he stated that the date on which the Bill was passed, the Provisional Constitution
Order was still in force and under the Order there was no requirement that the President should give assent to
the Bill passed by the Majlis-e-Shoora. He further contended that even though by a notification issued under
section 4 of the Revival of Constitution Order most of the provisions of the Constitution, as amended, stood
revived, yet in the presence of the Provisional Constitution Order, the Constitution could not become alive
again as there could not be possibly two Constitutions governing the State simultaneously.
The contention of Mr. U. Naimat Moulvi is clearly untenable. The sanction behind the Revival of the
Constitution Order was the Provisional Constitution Order itself. Article 238 of the Constitution, as revived,
laid down the mode of the amendment of the Constitution. According to the said Article, amendment of the
Constitution required the assent of the President. The President while giving assent to the Bill was acting in the
manner as envisaged by the Revival of the Constitution Order which, as already stated, had the sanction of the
Provisional Constitution Order itself. In the circumstances, the contention that the President could not give
assent to the Bill of the Majlis-e-Shoora or there could not be concomitantly two Constitutions in force is
neither here nor there.:
I, therefore, do not find any force hi the above contention of the Petitioners.
The last point in these cases relates to the locus standi of the petitioners. The learned counsel for the contesting
Respondents urge that no proceedings under Article 199 of the Constitution can be maintained unless the
petitioner is an aggrieved person. The learned counsel for the petitioners in reply to the above objection
relied on the case of Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416). In my view the
observations of the Supreme Court in that case are of no assistance to the petitioners in the present cases. The
proceedings in Benazir Bhutto's case were entertained by the Supreme Court under Article 184 of
the Constitution on the basis that the issue involved in the case had an element of Public Importance. Unlike
Article 199 of the Constitution, the petitioners under Article 184 need not be an aggrieved person. I am,
therefore, of the view that unless the petitioners are able to show violation of some personal right or non-
performance of some legal duty which has resulted in some personal disadvantage to them they cannot maintain
the petitions under Article 199 of the Constitution. In the cases before me, the petitioners are from amongst
the general body of voters who have already exejrcised their right of franchise in the elections and
in consequences thereof elected Governments are functioning both in Centre and the provinces. The
petitioners are seeking invalidation of some of the provisions of the Constitution under which the elected
Governments are functioning. The individual voter from amongst the general body of electorate, in
these circumstances cannot bring a grievance of this nature before the court specially when the decision on
the issue is likely to affect the working of elected Government in power which is not before the Court in the
proceedings. I am, therefore, of the view that the petitioners also do not have locus standi to file these
petitions. I accordingly dismiss the above Petitions but leave the parties to bear their respective costs.
Before parting with the case I must record my appreciation for the fairness and straight forward manner in
which the learned Attorney General placed his arguments before the court in these cases in his capacity as
amicus. Syed Abdur Rahman, J.--I had the benefit and privilege of going through the judgments proposed to be
delivered by the Hon'ble Chief Justice and my learned brother Hon'ble Mr. Justice Saeeduzzaman Siddiqui,
J. I am in respectful agreement with the conclusions arrived at by the Hon'ble Chief Justice as
further explained by my learned brother Saeeduzzaman Siddiqui, J. I feel tempted to add a few words of my
own looking to the importance of the constitutional issues involved therein, but let meat the very outset
summarise the conclusions:--
(i) No doubt General Mohammad Ziaul Haq had committed breach of the conditions on which Supreme Court
had accorded its recognition to the Martial Law and had become a usurper and occupied a
position somewhat similar to that of General Yahya Khan, still the ratio decidendi in the case olMissAsma
Jilani v. The Government of the Punjab reported hi PLD 1972 S.C. 139 would not be fully attracted as Article
270-A has been enacted by the parliament to provide blanket cover to all his acts and laws, whereas at the
time when the above case of Miss Asma Jilani was decided by the Supreme Court, Article 281 of the 1972
Interim Constitution or Article 268 of 1973 Constitution was not enacted.
(H) The effect .of-.validating Articles was considered in The State v. Zia-ur-Rahman' reported in PLD 1973
SC 49, (2) The Federation of Pakistan through the Secretary, Establishment Division, Government of
Pakistan Rawalpindi v. Saeed Ahmed Khan reported in PLD 1974 S.C. 151 (3) Sh. Karamat
All v. The State reported in PLD 1976 S.C. 476 (4) Fauji Foundation v. Shamimw
Rehman reported in PLD 1983 S.C. 457 (5) Miss. Benazir Bhutto v. Federation of
Pakistan reported in PLD 1988 S.C. 416, and it was held that the same were validly made and
protected the laws referred to therein.
(Hi) In Ziaur Rehman's case it has also been held that any law which is violative of
the Objectives Resolution can be struck down on the aforesaid ground only after
the same is incorporated in the body of the Constitution.
(/v) It is too late to declare that the Assemblies which came into existence as a result
of partyless elections in 1985 had no legal status or that they were illegal bodies.
Though the elections of 1985 to the Parliament were held on non-party basis, but the
important part played by it cannot be denied as it was instrumental hi getting the
Martial Law lifted and fundamental rights restored which enabled the Supreme Court
to strike down certain provisions of Political Parties Act as violative of fundamental
rights in Miss Benazir Bhutto's case. Moreover in Haji Saifullah
Khan v. Federation of Pakistan reported in PLD 1989 S.C. 166 the Supreme
Court while declaring the dissolution of the National Assembly as illegal had not
doubted its legal status.
(v) In the case Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 S.C. 26),
Supreme Court had not left open the question of legality of the National Assembly
while enacting Article 270-A wherein challenge was thrown to its competency to enact
Article 270-A. No doubt in para 16 of the judgment Supreme Court refrained from
expressing any view on it, but in paras 18 & 19 thereof the Supreme Court accepted
the proposition canvassed by the Attorney General that Article 270-A was
validly enacted. There was consensus among all learned counsel including Mr. Yahya
Bakhtiar on the competence of the legislature to enact Article 270- A.
(v/) although at the relevant time the CMLA had the power to amend
the Constitution, the Parliament was also competent to legislate the Eighth
Amendment. Principle of incompetence of delegatee to further delegate the power was
inapplicable. The Chief Martial Law Administrator was not a delegatee and that the
Eighth Amendment after having been passed by the Parliament was assented by the
Chief Martial Law Administrator and President. Moreover according to the dictum in
Fauji Foundation ease no mala fides can be attributed to the legislature.
(VH) After enforcement of P. O. 14 of 1985 on 2-3-1985 the General had not ceased to
have power to amend the Constitution and therefore could omit the Provincial assemblies
from Article 239, because he lifted the artial Law on 30-12-1985 and issued Martial Law
Regulation No. 107 on 29-12-1985, the validity of which was upheld in the case of
Ghulam Mustafa Khar.
(vwj) the alleged irregularities in the assumption of office by General Mohammad
Ziaul Haq would not render his official act of giving assent to Eighth Amendment Bill as illegal as it is
protected by de-facto doctrine, at least. Reliance was placed in Farzand All v. Province of West
Pakistan reported in PLD 1970 S.C. 98 and other cases of this Court and from Indian, English and American
jurisdiction. Challenge to the alleged irregularities cannot be thrown through a collateral proceedings
after several years, as it suffers from latches.
(ix) The National Assembly and Senate had power to pass Eighth Amendment even though they were
not Constitution Assembly like the Assembly that passed 1972 and 1973 Constitutions, because
the amendment was passed in accordance with the procedure prescribed for amending the Constitution.
(x) the Eighth Amendment was not brought about by force and coercion. Had it been so the original Bill
would not have been withdrawn on its non-acceptance by the members of National Assembly. It was
then amended and rcintroduced and then passed, after much deliberations.
(xi) No doubt the amendments have to some extent affected balance of power interese between the President
and Prime Minister but this Court cannot strike down a Constitutional provision for this reason or for the
reason that it was violative of basic structure of the Constitution or the Objectives Resolution or national
aspirations or higher ethical notions. An amendment in the Constitution cannot be struck down on a
ground other than that it was passed in a manner inconsistent with the procedure provided under the
Constitution.
(xii) The jurisdiction of this Court under Article 199 read with Article 175(2) of Constitution is, "subject to
Constitution," and not un-fettered, so as to empower it to strike down a provision of Constitution on a ground
other than the one given above.
(xiii) On the same principles the amendment increasing the number of seats and extending the term of the
Senate cannot be successfully challenged in the circumstances.
(jrfv) A prospective right of franchise already conferred by law may be enforced through
a Constitution Petition and that which is to be conferred by law to be enacted cannot be
enforced by Constitution etition.
(xv) There is a distinction between a political case and a political question. A political case may be subject to
adjudication by the Court but sensitive political question may not be subject matter of adjudication.
The challenge to the Eighth Amendment on the ground that it was not passed according to the Constitution is
not a political question and, therefore, it can be adjudicated upon though the case relating to it may be termed as
a political case. As to what should be the balance of power between President and the Prune Minister is a
sensitive political question of the nature which is not suitable for adjudication by the Court but can
be resolved by Parliament and the People through their chosen representatives.
(rvi) Every one of us including the Judges had taken oath to protect the constitution after the Martial
Law was lifted and the fundamental rights were restored on 1-1-1989 under the amended constitution
and therefore are bound by it.
(mi) The present legal edifice is based on the amended constitution, if we take out some amended
provisions the super-structure of democracy built on it may collapse. If the above amendments were
held as illegal it will affect the President, the Prime Minister and number of other incumbents
of offices and institutions who are not before us. This will be an unending process. There is no
manageable standard available to this court to decide which of the amendment should be struck
down and which should be retained.
2. The facts forming the background to these writ petitions are the part of our chequered
constitutional history which may be briefly stated as under:--
 3. General Mohammad Ziaul Haq, who was the Chief of the Army Staff
at the relevant time, imposed Martial Law, held certain provisions of the Constitution in
abeyance, dismissed the then Prime Minister Zulfiqar Ali Bhutto and dissolved the 'Parliament and took
over the administration of the country on 5th July, 1977. On 16-9-1978 General Mohammad Ziaul Haq
assumed the office of President. On 1-12-1984 he promulgated Referendum Order 1984 and
after holding a referendum declared himself the elected President of Pakistan on the basis of the result of
that referendum. On 2-3-1985 he promulgated R. C. O. (P.O. No. 14 of 1985). In accordance therewith
elections were held on non-party basis and a National Assembly and a Senate were elected. He also
promulgated P.O. 20
of 1985 and P.O. 14 of 1985. The National Assembly and Senate, which were the two Houses of Majlis-e-
Shoora (Parliament) enacted Act XVIII of 1985. By this Act a number of amendments were made. The
details of which need not be given.
4. The learned advocates who canvassed for the annulment of the 8 th Amendment
contended that it was passed by a Parliament which was elected on non-party basis and, therefore,
that Parliament was not elected in a free democratic and fair manner nor can be it called a
democratic parliament. It was also argued that these amendments had distorted and disfigured the
basic structure of the original 1973 Constitution and had violated the grund norm i.e. Objectives
Resolution. It was also contended tha the Senate which was elected by the Provincial Assemblies of the
four Provinces all of which were elected on non- party basis was equally un-democratic and was not
elected by free and fair elections. Moreover the term of the Senate having been expired in March,
1988, was unlawfully extended by said Parliament for two years.
5. It may be re-called that this action of General Mohammad Ziaul Haq was not the solitary act in
the Constitutional history of Pakistan nor was this outrage first in the line. The Constitutional history of
Pakistan is unique in its nature in that there has been usurpation of power by the then heads of the State
more than once and thereafter by the Commander-in-Chiefs of the Army on several occasions and the
democratic governments of the time were toppled and the Country was ruled by the head of Army Chief
concerned for years together. The first of such occasions was the dismissal of Khawaja Nazimuddin the
then Prime Minister and the dissolution of National and Provincial Assemblies by the then Governor General
Ghulam Mohammad in 1953. The second was a similar action by the then President Iskandar Mirza, in 1958 and
the imposition of Martial Law which was soon thereafter followed by his own ouster by the then Commander-
in-Chief General Mohammad Ayub Khan. The validity of the action was considered by the Supreme Court in
the case of State v. Dosso reported in PLD 1958 S.C. (Pak) 533. The then Chief Justice Mohammad Muneer
who delivered the leading judgment observed that the basic doctrines of legal positivism were such firmly
and universally accepted that the whole science of modern jurisprudence rested upon them, that any abrupt
political change not within the contemplation of the Constitution constitutes -a revolution, no matter how
temporary or transitory the change, if no one has taken any step to oppose it and that the rule of international
law with regard to the recognition of States can determine the validity of the States internal sovereignty also.
Such a change not only affects the legal destruction of the Constitution but also gives validity to the new
national legal order. Thus the Supreme Court of Pakistan accepted Kelsen's theory.
6. The above view of the Supreme Court in Dosso's case was re-considered after lifting of
Martial Law and restoration of democracy, after the country had lost half of its territory and
population and the view was over-ruled by it in the subsequent case of Asma Jilani v. Government of
Punjab reported in PLD 1972 S.C. 139. The Chief Justice of that time Mr. Justice Hamoodur
Rahman declared General Mohammad Yahyya Khan, who had imposed Martial Law on 24-3-1969 as
a usurper and held that proclamation of Martial Law by itself does not give the Commander of the
Armed Forces the power to abrogate the Constitution which he is bound by his oath to defend. The
Supreme Court, therefore, held that there can be no doubt that the Military Rule sought to be
imposed on the country by General Mohammad Yahyya Khan was entirely illegal. Over-ruling their
earlier decision in Dosso's case it was held as follows:--
"The Observations of the Chief Justice in Dosso's case are not correct that upon the principles of
international law if the territory and the people remain substantially the same there is "no change hi the
corpus or international entity of the State and the revolutionary government and the new State are, according to
international law, the legitimate Government and the valid Constitution of the State". This proposition does
not find support from any principle of international law. According to Oppenheim's view as propounded
in his book on International Law if the revolutionary Government is ineffective and or has no
"reasonable expectancy of permanence", and/or does not "enjoy the acquiescence of the population", then the
international community may well refuse to recognize it, even though its territorial integrity remains
unchanged and its people remain substantially the same. The criticism therefore, is true that the Chief Justice
of the Supreme Court not only misapplied the doctrine of Hans Kelsen, but also fell into error in thinking
that it was a generally accepted doctrine of modern jurisprudence. Even the disciples of Kelsen have hesitated
to go as far as Kelsen had gone. Yaqoob Ali, J (as he then was) went to the extent of observing that in his

view a person who destroys the national legal order in an illegitimate manner cannot be regarded- as a valid
source of law-making. May be that on account of his holding the coercive apparatus of the State, the people
and the Courts are silenced temporarily but let it be laid down firmly that the order which the usurper imposes
will remain illegal and Court will not recognize its rule and act upon them as de jure. As soon as the first
opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for
high treason and suitably punished. This alone will serve as a deterrent to would be adventurers.
Dealing with the acts of usurper in Asma Jilani's case it was observed by Hamood-ur-Rahman, C.J., that
there was no doubt that a usurper may do things both good and bad, and he may have during the period of
usurpation also made many Regulations or taken actions which would be valid if emanating from a lawful
Government and which may well have, in the course of time, affected the enforcement of contracts, the
settlement of estates, the transfer of property and other rights etc. Hence taking recourse to the doctrine of
necessity where the ignoring of it would result hi disastrous consequences to the body politic and upset the
social order, a number of condonations were resorted to and not legitimization because the illegal acts
of the usurper should not be validated but had to be condoned. Applying this test the Supreme Court condoned:
"(1) All transactions which are past and closed, for, no useful purpose can be served by re-opening them, (2) all
acts and legislative measures which are in accordance with, or could have been made under, the
abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good
of the people, (4) 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, in our case, the objectives mentioned in the
Objectives Resolution of 1954. I would not, however, condone any act intended to entrench the usurper more
firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not
Also condone anything which seriously impairs the rights of the citizens except hi so far as they may be
designed to advance the social welfare and national solidarity."
The next case is The State v. Zia-ur-Rahman reported hi PLD 1973 S.C. 49. To minimize the consequences
of the case of Asma Jillani referred to above Article 281 was enacted hi the interim Constitution of 1972
whereby all laws made after General Yahya Khan's imposition of Martial Law were validated notwithstanding
any judgment of any Court and the jurisdiction of the Courts was ousted from questioning any such laws. It also
saved all the orders, proceedings and acts of the said period from legal challenge. The validity of Article 281 of
the Interim Constitution 1972 was examined hi Zia-ur-Rahman's case. It was, however held that amendments hi
the Constitution could be declared as void by the Court if the same were adopted hi a manner different to that
prescribed in the Constitution itself. In this ruling it was held that the Constitution was supreme law by which
the Government can be controlled and stood higher hi position than other laws of the country. Judiciary
including Supreme Court was a creature of the Constitution and has never claimed the right to strike down any
provision thereof. It does, however, claim the right to interpret the constitution even if the provision is one
seeking to oust the jurisdiction of the Court. In exercising the power of interpreting the constitution the
judiciary acts only as an administration of the public will. Even when it declares a legislative measure
unconstitutional and void, it does not do so, because the judicial power is superior in degree or dignity to the
legislative power because the constitution had vested it with such power. Dealing with the objective resolution it
was held that the same was the grund norm of Pakistan and that the Constitution had drawn inspiration from it. It
was, however, held that no provision of law or constitution including Article 24 could be tested on the touch
stone of Objective Resolution until and unless it was incorporated in the Constitution.
Case of Federation of Pakistan v. Saeed Ahmad reported in PLD 1974 S.C. 151 again took into consideration
Article 281 of the Interim Constitution of 1972 with regard to the jurisdiction of the Court to examine the cases
of government servants dismissed and removed from the service or retired before time. It was held that the
order did not extend to acts done, orders made or proceedings taken without jurisdiction, coram-non-
judice or malafide. With regard to the constitutional provisions following principles of interpretation were
enumerated:--
"(/) The Constitution is a fundamental or organic or supreme law standing on a somewhat higher position than
the other laws of the country.
(//) The Constitution is the source from which all governmental power amanates and it defines its scope and
ambit so that each functionary should act within his respective sphere.
(Hi) The Courts are creatures of the Constitution; they derive their powers and jurisdiction from the
Constitution and must confine themselves within the limits set by the Constitution.
(iv) Under a Constitution prescribing a system where there is a trichotomy of sovereign powers the judicial
power must from the very nature of things be vested in the judiciary.
(v) Thus the judiciary does claim and has always claimed that it has the right to interpret the Constitution and
to say as to what a particular provision of the Constitution means or does not mean even if it is a
provision seeking to oust its own jurisdiction.
(v/) In the latter case an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that
provisions seeking to oust the jurisdiction of superior Courts, even by a constitutional provision, are to be
construed strictly with a pronounced leaning against ouster.
(vii) It is not, however, the function of the judiciary to legislate or to question the wisdom of the law-giver
if the law has been competently made without transgressing the limitations of the onstitution. If a law has
been competently made the judiciary cannot refuse to enforce it- even if the result be to nullify its own
decisions.
(viii) The law-giver has also every right to change, amend or clarify the law if the judiciary has found that the
language used conveys an intent different | from that which was sought to be conveyed by the law-giver.
(ix) The Constitution has to be construed like any other document reading it as a whole and giving to every
part thereof a meaning consistent with the other provisions of the Constitution.
(x) As far as possible each provision of the Constitution should be construed so as the harmonize with all the
others."
On 5-7-1977 late Mr. Zulfiqar Ali Bhutto, who was Prime Minister of Pakistan, was dismissed in consequence
of a military taken over by General Mohammad Ziaul Haq, the then Chief of Army Staff. The Federal as well
as Provincial Assemblies were dissolved. The constitution was not abrogated but some of its provisions were
held in abeyance. Martial law was proclaimed and General Mohammad Ziaul Haq assumed the office of Chief
Martial Law Administrator. This action of General Mohammad Ziaul Haq was challenged in the
Supreme Court in the case of Begum Nusrat Bliuloo v. Chief of Army Staff reported in PLD 1977 S.C. 657.
Majority view was that the principles laid down in the case of Asma Jillani were not applicable to the facts of this
case. It was also held that Kelsen's theory of revolution also did not "apply to the change over brought about
by General Mohammad Ziaul Haq. That military coup was however, justified on the maxim ofsaluspopuli. It
was held as follows:--
The conditions culminating in the Proclamation of Martial Law were so grave that the very existence of the
country was threatened, that 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 in
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 under the 1973
Constitution. No exception can, therefore, be taken to the validity of this provision.
The Court, however, called upon the C.M.L.A., to hold free and fair elections and made the following
observations:
"While the Court does not consider it appropriate to issue any directions as to a definite time-table for the
holding of elections, the Court would like to state hi clear terms that it has found it possible to validate
the extra-Constitutional action of the Chief Martial Law Administrator not only for the reason that he stepped
in to save the country at a time of grave national crises and constitutional break-down, but also because of the
solemn pledge given by him that the period of constitutional deviations shall be of as short a duration as
possible, and that during this period all his energies shall be directed towards creating conditions conducive to
the holding of free and fair elections, leading to the restoration of democratic rule in accordance with the
dictates of the Constitution. The Court, therefore, expects the Chief Martial Law Administrator to redeem this
pledge, which must be construed in the nature of a mandate from the people of Pakistan, who have, by the
large, willingly accepted his administration as interim Government of Pakistan.
The C.M.LA. was thereby held entitled to perform all such acts and promulgate all such laws which were
necessary for the above purpose including the power to amend the constitution.
Makhdoom Ali Khan a young barrister in his introduction on the Constitution of Islamic Republic of
Pakistan has made the following comments on this judgment:
"This enunciation of the Law of necessity by Chief Justice Anwarul Haq was contrary to what the Supreme
Court under another Chief Justice had laid down as law declared only five years ago;"I too am of the opinion
that recourse has to be taken to the doctrine of necessity were the ignoring of it would result
in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to
disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion,
this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurper
were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or
otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I
would call this a principle of condonation and not legitimization."
One could have supported the Begum Nusrat Bhutto judgment as an attempt to discover a middle ground
between Dosso and Asma Jillani, in order to save judicial powers from being destroyed and
retain jurisdiction, at a tune when the CMLA still held the reins of power and the Court had taken a new oath.
But the strange and disturbing aspect of the judgment was the permission given to the CMLA to amend
the Constitution and this is what makes it indefensible. It is submitted that the Court as an institution had no
power or jurisdiction to circumvent settled constitutional procedures and allow someone who could at best
be described as an executive functionary to tamper with the Constitution. This was an exercise of power
without precedent. It could not draw support from either the text or the ideals of the Constitution and
was, therefore, unconstitutional. It now appears that not all the judges of the Supreme Court were prepared
to give the CMLA a free hand in amending the Constitution. That may be the case, but not a single,
dissent was filed, no appeal was made".
General Mohammad Ziaul Haq did not hold elections as promised from time to time and went on postponing
the same. Instead he promulgated Provisional Constitution Order on 23-3-1981. Thereafter he promulgated
Referendum Order 1984 and on the pretext of a favourable verdict from the public declared himself to be the
President of Pakistan under the revival of Constitution of 1973 Order 1985 (P.O. 14/1985). The parliament,
elected on non-political basis under the P.C.O. enacted Article 270-A as well as made many other
amendments in the Constitution of Pakistan (1973) by the Constitution (8th Amendment) Act 1985. The
validity of Article 270-A, as it was enacted in P.O. 14 of 1985, was challenged before this Court in the case of
Mohammad Bachal Memon v. Government ofSind reported in PLD 1987 Karachi 296. A Full Bench of this
Court held as follows:-
"Thirdly, Article 2-A on the basis of which also validity of Article 270-A is sought to be questioned was inserted
by the President's Order No. 14 of 1985 promulgated on 2-3-1985, by the President of Pakistan. I do not find any
valid reason nor has any been advanced by any counsel to test the validity of an amendment made in the
Constitution by the Parliament by Constitution (Eighth Amendment) Act, 1985, on the touchstone of
a provision which was initially not an enforceable part of the Constitution and which was made enforceable by
the President's Order No. 14 of 1985. In my opinion both the amendments have the same force and the
validity of one cannot be tested on the touchstone of the other."
The decision of Mohammad BachaPs case was taken in appeal to the Supreme Court in Federation of
Pakistan v. Ghulam Mustafa KJiar reported in PLD 1989 S.C. 26. It was held that clause (1) of Article 270-A
gave blanket protection to all laws made during the period when Martial Law was enforced i.e. from 5.7.
1977 upto the lifting of Martial Law in 1985 and that the validation extended by said clause encompassed not
only their past operation but also their future continuance despite any other provision to the contrary
contained in the Constitution. It would oust the jurisdiction of the Courts from examining the validity of the
said laws on any account whatsoever. In this ruling it was, however, held that this clause did not save acts,
orders or proceedings which were done, made or taken without jurisdiction, malafide or coram non judice and
it was unnecessary to draw a difference between malice in fact and malice in law. Thus Article 270-A of the
Constitution, which was brought into it by 8th Amendment, was held to be validly and competently enacted.
The National Assembly and the Provincial Assemblies were dissolved by General Mohammad Ziaul Haq on
29-5-1988 and the Prime Minister and the Federal and Provincial Cabinets were dismissed. The dismissal of
the Prime Minister and the dissolution of the Assemblies came up for consideration in appeal before the
Supreme Court in the case of Federation of Pakistan vMohammad Saifullah Khan reported in PLD 1989
S.C. 166. The dismissal of the Prime Minister and the dissolution of Assemblies was declared by Lahore
High Court to be illegal and the order of the Lahore High Court to that effect was upheld by the Supreme
Court. The relief of restoration of the National Assembly was, however, not granted, despite this finding and
the reasons for doing so enumerated by Lahore High Court were approved by the Supreme Court which read
as under:
"But we are not unmindful of the fact that the whole nation is geared up for elections and we do not propose
to do anything which makes confusion worst confounded and creates a greater state of chaos which would be
the reason if the vital process of elections is interrupted at this juncture.
The Courts always keep in view the higher interest of Pakistan while resolving matters of national
importance in accordance with the Constitution and law. National interests must take precedence
over private interests and individual rights. The forthcoming elections are at hand and the people of Pakistan
must be allowed to choose their representatives for the National Assembly on party basis, a right which
is guaranteed to them under the Constitution.
The writ jurisdiction is discretionary in nature and even if the Court finds that a party has a good case, it
may refrain from giving him the relief if greater harm is likely to be caused thereby than the one sought
to be remedied. It is well settled that individual interest must be subordinated to the collective good.
Therefore, we refrain from granting consequential reliefs, inter alia, the restoration of the National
Assembly and the dissolved Federal Cabinet."
The Supreme Court also expressed itself on the question of national interest in the following words:
"It is true that the concept of "national interests taking precedence over rights of the individuals"
which has been given effect to by us is a somewhat indefinite concept and the decision of this Court
to deny the relief in exercise of its discretionary jurisdiction on its basis, therefore, requires some
elaboration.
Granted that the concept of "national interests taking precedence over individual rights" is an indefinite
concept and that it can mean different things to different persons but in the instant case no
such ambiguity existed because it was quite clear that the national interest would be better served by a
recourse to the electorate than by the restoration of the existing Assemblies provided, of course, the
holding of the elections on a very early date was ensured. The bane of our society has been that elections
have not been held with any degree of regularity, after reasonable intervals. An overwhelming majority in
the country was strongly of the opinion and a clear national consensus existed to the effect that the political
malaise in the country could be solved only by holding national general elections, wherein all the political
parties were allowed to participate. In conformity with this national consensus and the unambiguously
expressed wish of all the political parties of Pakistan and every section of the people there was no difficulty
in coming to the conclusion that an appeal to the electorate rather than restoration of the existing
Assemblies, ensuring at the same time that the dates already fixed in this behalf namely the 16th
November, 1988, for the National Assembly and 19th november, 1988, for the Provincial Assemblies were
adhered to was the proper course to be followed and that this was in the collective good. In exercise of the
discretionary writ jurisdiction it was not, therefore, considered appropriate to set aside the
aforementioned part of the order of the President whereby the dates for holding of fresh general
elections were specified. On the other hand, to ensure compliance therewith and to see that elections
are actually held on these dates, the said dates were made a binding part of the Court's judgment itself.
Accordingly, in our short order, passed at the conclusion of the hearing, it was said :
"We however, emphasise that the general elections scheduled for the 16th and the 19th November, 1988, shall
be held on the said dates and an opportunity be thus afforded to the people of Pakistan to choose their own
representatives in a free, fair and impartial election.
Accordingly, these appeals stand disposed of in the above terms."
In an Islamic State sovereignty belongs to Almighty Allah alone. The authority is to be exercised by the
people of that State within the limits prescribed by Allah and such authority is a sacred trust. Holy Quran
has .commanded the Muslims to decide all tHeir matters by means of Shoora ( & X-^*V**f>*/^ L> ) thereby
these Muslims have been commanded to ordain their State in accordance with the principles of democracy,
fraternity and equality. The Muslims have to order their lives in their individual and collective spheres in
accordance with the teachings and requirements of Islam as set out in Holy Quran and Sunnah. It was with this
object and goal in view that the first constituent As^i. ably had passed the Objectives Resolution, which reads as
under :-
"Whereas sovereignty over the entire Universe belongs 10 Almighty Allah alone, and the authority to be
exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;
And whereas it is the will of the people of Pakistan to establish an order-Wherein the State shall exercise its
powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam,
shall be fully observed;
Wherein the Muslims shall be enabled to order their Jives in theij individual and collective spheres in
accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;
Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and
develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may
hereafter be included in or accede to Pakistan shall from a Federation wherein the units will be
autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law,
social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association,
subject to law and public morality;
Wherein adequate provision shall be made to safeguard the legitimate interest of minorities and backward and
depressed classes;
Wherein the independence of the judiciary shall be fully secured;

Wherein the integrity of the territories of the Federation, its independence and all its rights,
including its sovereign rights on land, sea and air, shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the
nations of the world and make their full contribution towards international peace and progress and
happiness of humanity;.
Now, therefore, we the people of Pakistan, Cognisant of our responsibility before Almighty
Allah and men;
Cognisant of the sacrifices made by the people in the cause of Pakistan;
Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah,
that Pakistan would be a democratic State based on Islamic Principles of .social justice;
Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against
oppression and tyranny; Inspired by the resolve to protect our national and political unity and solidarity by
creating an egalitarian society through a new order;
Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves,
this Constitution."
Mr. Yahya Bakhtiar, Attorney General contended that superior Courts in Pakistan have the jurisdiction to
examine the validity of a constitutional amendment made by Parliament. According to him Parliament does
not enjoy unfettered powers to amend the constitution. It could not pass an amendment which would alter or
change the basic structure of the Constitution or was in violation of the Objectives Resolution which was
previously a part of the preamble of the Constitution but has now been made an operative part of the
Constitution in the form of Article 2-A. He referred to the case of Ziaur Rehman where
dealing with the Objectives Resolution the Supreme Court held that the same was the grund norm of Pakistan
and that Constitution had drawn inspiration from it. It was however, held that no provision of law or
Constitution could be tested on the touch stone of the Objectives Resolution unless it was incorporated
in theConstitution. The Objectives Resolution having thereafter been incorporated in the Constitution, the
Courts will now strike down an amendment in the Constitution made by the Parliament which comes in
conflict with ObjectivesResolution. The basic features of Constitution are its Islamic character,
federal structure based on Parliamentary system of Government and resolution of fundamental rights.
Elaborating his point Mr. Yahya contended that in the Muslim World, Khilafate Ellahia which had descended
on Holy Prophet (peace be upon him), transcended to Khilafat-e-Rashida and thereafter to
succeeding Khilafats till it came to an end with the abolition of Turkish Khilafat. Allama Dr. Sir Mohammad
Iqbal did ijtehad and declared the National Assembly established by Mustafa Kamal Ataturk in Turkey as a
Khalifa in his lectures-Reconstruction of Islam. Similar view was expressed by Moulana Maudoodi in one of his
lectures at Aligarh. He further contended that if a provision of the Constitution was inconsistent with the
Objectives Resolution the inconsistency could be resolved by resorting to the doctrine of harmonious
interpretation. Similar view was expressed by me in the case of Sharaf Faridi v federation of Islamic Republic of
Pakistan reported in PLD 1989 Karachi 404 where it was held:-
"In my humble view it is not necessary for the Courts to strike down any provision of the Constitution if it is
inconsistent with the Objectives Resolution or with any other provision thereof which stands on a
higher pedestal and the Court can solve the problem by applying the principle of N harmonious interpretation
keeping in view the principles of Islamic ideology and public good read with the judicial activism
following the latest trend of the decisions of the Supreme Court and High Courts in our country."
Elucidating further that harmonious interpretation implies in giving effect to one of the two inconsistent
provisions by the Court if the inconsistency was patent and clear. He placed reliance in N.L.R. 1980 Karachi
673- Mir Abdul Baqi Batoch v/s. Jam Mir Ghulatn Qadir Khan of Lasbella, where it was held that if
two provisions of a statute or constitution were clearly inconsistent, the principle of harmonious interpretation
lay in giving effect by the Court to one of them.
As already held by this Court in Bachal's case as also affirmed by a full Bench of seven Judges of this
Court in Sharaf Faridi's case of which I was also a member, the validity of Article 270-A, which was
introduced by the Eighth Amendment, in the Constitution cannot be questioned by this Court as this Court can
not go against its own decision and strike down the provisions of the Constitution. I, therefore, hold that the
Eighth Amendment was validry enacted by the then Parliament which was lawfully elected and had power to
amend the Constitution. This view seems to have been approved by the Supreme Court in some of the cases
referred to above. This Court is also bound by tfce above precedents in view of Article 189 of the Constitution.

Maiaoon Kazi, J.--I have had the benefit of going through tie jtidgattiaf proposed to be dlivered by my lord
the Chief Justice. Although I find myself in respectful agreement with most of the observations made therein
but I regret my inability to concur with the others, and hence this separate note.
2. These petitions call in question the validity of the Eighth Amendment to the Constitution
introduced through the Constitution (Eighth Amendment^ Act, 1985. The amendment which was introduced
in the National Assembly, in the • form of a bill on 30-9-1985, was passed by the said Assembly and the
Senate on 16-10-1985 and 28-10-1985 respectively. Thereafter, it received the assent of the. President of
Pakistan on 9-11-1985 and was published in the Gazette on llth November, 1985. The petitioners in
C.P.Nos. D-76/89 and D-168/89 are aggrieved by the amendments as they are eligible for contesting
elections to the Senate, but the term of its Members has been extended from four years to six years, thus
depriving them of their right to contest the elections.
3. Before reference may be made to the contentions, inter alia raised on behalf of the petitioners, it
will be worthwhile to recall the events, which led to the passing of the said Act by the Majlis-e-Shoora.
4. On 5th July, 1977, General Mohammad Zia-ul-Haq, the Chief of titan Army Staff, issued a
proclamation imposing Martial Law on the whole of Pakistan. The Constitution of 1973, under which the
country was being governed, was held-in-abeyance and the Prime Minister, all Central Ministers, the
Speaker and the Deputy Speaker of the National Assembly, the Chairman and Deputy Chairman of the
Senate, Provincial Governors and the Provincial Chief Ministers and the Ministers ceased to hold their
respective offices. The National and the Provincial Assemblies were also dissolved. However, the President
of Pakistan continued to remain in his office. This proclamation of Martial Law was followed by the Laws
(Continuance in Force) Ordinance, 1977 to give effect to the new order under which the country was then
to be governed and it was said that subject to certain limitations, the country was to be governed as nearly as
may be in accordance with the 1973 Constitution, and all laws for the time being in force were to continue.
The reasons which led to such action are well known. The Pakistan National Alliance, which was a
conglomeration of the opposition parties launched an agitation throughout the country alleging that the
elections held in 1977 had been rigged by the Pakistan Peoples Party, which was then in power. As the agitation
gained further momentum, making it difficult for the civil authorities to control the sitution, Martial Law was
imposed. Referring to the circumstances, which led to the imposition of Martial Law in the country in Begum
Nusrat Bhutto v. Tlie Chief of Army Staff (PLD 1977 SC 657), the Chief Justice observed " --------- .it
was in these circumstances that the armed forces of Pakistan ...... intervened to save
the country from further chaos, blood-shed, to save its integrity and sovereignty and to separate the warring
factions, which had brought the country to brink of disaster. It was undoubtedly an extra constitutional step,
but obviously dictated by the highest consideration by the State validity and welfare of the people......"
Finally holding that deviation from the normal legal order could be justified on the ground of necessity, the
legal position emerging from the situation was summarised as follows:
"(i) That the 1973 Constitution still remains the supreme law of the laad, subject to the condition that certain
parts thereof have been held in abeyance on account of State necessity,
(ii) That the President of Pakistan and the superior Courts continue to function under the Constitution. The
mere fact that the Judges of the superior Courts have taken a new oath after the Proclamation of Martial Law,
does not hi any manner derogate from this position, as the Courts had been originally established under the
1973 Constutiton, and have continued in their functions in spite of the proclamation of Martial Law,
(iii) 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 recognised by judicial authorities as
falling within the scope of the law of necessity, namely: -
(a) All acts or legislative measures which are in accordance with, or could have been made under the
1973 Constitution, including ft power to amend it;
(b) All acts which tend to advance or promote the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared objectives of
the proclamation of Martial Law, namely,. restoration of law and order, and normally in the
country, and the earliest possible holding of free and fair elctions for the purpps&af restoration of
democratic institutions under the 1973 Constitution;
(iv) That these acts, or any of them, may be performed or- carried oat Jtf^ means of Presidential
Orders, Ordinances, Martial -L«|W.j Regulaltions, or Orders, as the occasion may require; and
(v)
That the superior Courts continue to have the power of jucfi^SP review to judge the validity of any
act or action of the Martial LatW,£ Authorities, if challenged, in the light of the principles underly'
the law of necessity as stated above. Their powers under Article' of the Constitution thus
remain available to their Ml extent, : may be exercised as heretofore, notwithstanding anything
to the contrary contained in any Martial Law Regulation or Order, Presidential Order or
Ordinance."

5. On 16-9-1978, the President's Succession Order (No. 13 of 19%) promulgated and

according to clause 3(1) thereof, "......Chief Martial Administrator or such other person, as
may be designated by the Chief Law Administrator, shall be the President and shall perform all
functions to the President by or under the Constitution or by or under any law,..... 1' I office of
the President became vacant on account of the reasons specified I said clause 3(1), then
according to clause 4 thereof, "If the Chief Ma Administrator is the President he shall hold office
until President is el accordance with the Constitution". Late Mr. Fazal Elahi Choudhry, who
was President before the promulgation of the said President's Order resigned from J office and
since no other person was designated as President by the Chief Martial Law Administrator,
General Muhammad Zia-ul-Haq by virtue of clause 3^J*ef the said Order himself became the
President of Pakistan. -*
6. On 24-3-1981, the Provisional Constitution Order (C.M.LA*s Order 1« 1981) was
promulgated and certain provisions of the Constitution, which w >v earlier held-in-abeyance,
became operative as part of the said Order. By virtue of ' clause 15 thereof validation was accorded to
the proclamation of fifth day of Juty, 1977, all President's Orders, Orders of the Chief Martial
Law Administrator
including Orders amending the Constitution made by the President or the Chief Martial Law
Administrator, Martial Law Regulations, Martial Law Orders and att - other laws made on or after the
fifth day of July, 1977, by declaring them to hav&j " been validly made by a competent authority,
notwithstanding any judgment of; Court. Under clause 16 of the Order, "the President as weff as the
Chief
Law Administrator shall have, and shall be deemed always to have had the power to amend the
Constitution."
7. Another significant fact in the chain of events preceding the passing of the Constitution
(Eighth Amendment) Act, 1985 is the Referendum Order (President's Order 11 of 1984), which
was published in the Gazette of Pakistan Extraordinary, on 1-12-1984. This Order, according to
Clause 3 thereof, provided that "the elections to the National Assembly, the Provincial Assemblies
and the Senate shall be completed by 23-3-1985" A question framed under clause 4 thereof was
referred to referendum and as the majority of the votes cast in the referendum were in
favour of the answer "Yes", General Muhammad Zia-ul-Haq by virtue of Clause 7 thereof became the
President of Pakistan.
8. On 2-3-1985, the President issued Revival of the Constitution of 1973 Order (President's
Order 14 of 1985). After passing of this Order, which became effective from 10th March, 1985 by
virtue of Clause 4 thereof, "The provisions of the Constitution, as amended by this Order, shall stand
revived on such day as the President may, by Notification in the official Gazette appoint and
different days may be so appointed in respect of different provisions." By this Order,
the Constitution of 1973 was drastically amended and as many as fifty-nine amendments
were introduced therein. Thereafter the President issued two more orders viz., P.O. 20/85 and P.O.
24/85 introducing further amendments in the Constitution.
9. After promulgation of the Revival of the Constitution of 1973 Order, the elections to the
National Assembly and the Provincial Assemblies took place on 2* 2-1985 and 9-2-1985 respectively
and the elections to the Senate took place on 21- 3-1985. These elections which took place under
President's Order 5 of 1977 were held on non-party basis. Thereafter a joint session of the Parliament
was held on 23-3-1985.
10. On 13-9-1985, a bill purporting to incorporate the said amendments in the Constitution was
introduced in the National Assembly and was passed by the same on 16-10-1985. On 28-10-1985, the bill
was passed by the Senate and after assent by the President was given on 9-11-1985, the
Constitution (Eighth Amendment) Act, 1985 was passed and the same was published in Gazette of
Pakistan, Extraordinary, dated llth November, 1985. On 30th December, 1985, the Proclamation of
withdrawal of Martial Law was issued by the Chief of the Army Staff and the Chief Martial Law
Administrator and hence the transition from Martial Law to the restoration of democracy finally took place.
11. The contentions raised before us on behalf of the petitioners have been formulated by me as
follows:
(i) that power to amend the Constitution was derived by the Chief Martial Law Administrator through
Begum Nusrat Bhutto's case (PLD 1977 SC 657), therefore, each amendment, introduced in the
Constitution was liable to be tested on the touchstone of the doctrine of necessity as propounded in the
said case.
(ii) that the Constitution (Eighth Amendment) Act, 1985 cannot be construed as a valid piece of
legislation as assent thereto under Article 75 and Article 239 of the Constitution was not given to
it by a duly elected President whose so-called endorsement under the Referendum
Order, 1984 was obtained from the people of Pakistan by an extra-Constitutional Act,
which infact, was a fraud committed upon the Constitution and the nation;
(iii) that the National Assembly which came into existence on the basis of non-party
elections was not competent to pass the eighth amendment to the Constitution;
(iv) that the Parliament, not being a Constituent Assembly, had no mandate from the
people of Pakistan to introduce amendments in the Constitution which have altered its
basic structure and features and exercise of power by it by dint of amendatory
provisions was ultra vires, un-Constitutional and null and void;
(v) the extension of the term of the members to retire from the Senate from 4 years to 6
years by amendment of Article 59(3) of the Constitution was opposed to the basic
principle of democracy that no legislature can extend the term of its members;
(vi) that Article 270-A of the Constitution which was introduced into the Constitution
through the Constitution (Eighth Amendment) Act, 1985 cannot provide a blanket
protection to such amendments which are opposed to the basic structure of the
Constitution; and(vii) that two legislatures, viz., the Parliament and the C.M.LA.
could not coexist at the same time and consequently, the National Assembly was
not competent to pass the Eighth Amendment Bill.
12. The question as to the competence of the National Assembly elected on non-party
basis was raised in the case of Malik Ghulam Mustafa Kliar v. Pakistan and orders
(PLD 1988 Lah. 49=PLJ 1987 Lahore 669) and the argument advanced on behalf of
the petitioner was as follows:
"64. Mr. Aitzaz Ahsan has raised another formidable objection and thrown a challenge to
the competence of the Parliament to pass the Constitution (Eighth Amendment) Act 1985
whereby Article 270-A was incorporated in the Constitution. The first part of his argument
is founded on the observations made in Begum Nusrat Bhutto's case, requiring the Chief
Martial Law Administrator to hold free and fair elections, in terms of the 1973
Constitution. It is contended that the present Parliament has been installed through a process of
election held on non-party basis, whereby the political campaign was restricted,discussion
on fundamental issues prohibited; arbitrary disqualifications of the candidates, in the Election Laws,
the categories of the candidates were limited; there was also a ban on propagation and mass contacts as
under the Martial Law Order No. 102, holding of any meeting of public nature for seeking support in favour
of any candidate was an offence and, thus, it was practically made impossible for the candidates to project
their view point before the public. Resultantly, the candidates were elected on "Bradari Basis". It was pointed
out that the Election Laws were drastically amended to change the complexion of the election. In this
behalf the learned counsel invited our attention to the amendments made is ttt Representation of the
People Act, 1976 aod the Houses of ParKaraeof and Provincial Assemblies (Election) Order, 1977. It is not
necessary/ W give here the details of such amendments. Reference was also made by the learned counsel to
Martial Law Regulations Nos. 33 and 48. As a result of these Regulations, canvassing or compaigning of
political parties was prohibited. In this view of the matter the learned counsel concluded that the election, in
consequence whereof the present Parliament came into existence cannot be treated to have been held
under 1973 Constitution."
The argument was however repelled by the Lahore High Court, rtse reasons for which appear in
paragraph 67 of the judgment as follows:
"67. The general elections, under challenge, were held tinder the Houses of Parliament and Provincial
Assemblies (Elections) Order, 1977. Article 24 of the Order, to which our attention has been drawn
by the leaned Attorney-General provides that the election held uader the said Order "shall be deemed
to have been held under the Constitution and S&&B fene effect accordingly." This article rather the
Order itsefl^ anrf 'afifct1-connected laws were examined by the Supreme Court in Zulfiqar AH Bhutto's
case and it was held,
"................ It will be seen that from a perusal of the Post-Proclamation Order No. 5 of 1977 read with Post-
Proclamation Order No. 4 of 1977, It becomes abundantly dear that the forthcoming elections are not
covered by any provision of 1973 Constitution nor, indeed, could they be so covered as the situation arising
in March, 1977, in the wake of wide spread allegations of massive rigging of the elections, was an
unprecedented situation not within the contemplation of the Constitution. It was, therefore, necessary to make
special provision for new elections, and the Post-Proclamation Order No. 5 of 1977 rightly recites hat these
provisions were being made 'in an endeavour to restore the principles of democracy where-under the State of
Pakistan exercises its power and authority through the chosen representatives of the people.' It is ia the same
spirit that Article 24 of Order lays down that the elections held under this Order shall be deemed to have
been held uader the Constitution and shall have effect accordingly. Without this deeming provision the
resulting Legislatures could not function under the 1973 Constitution but to our mind the deeming provision
contained in Article 24 of this Order, cannot attract, in terms of the provisions contained ia Chapter I of Part
VIII of the Constitution relating to elections, as the elections are, in fact, not being held under that chapter.
The deeming clause is to come into operation only after the elections have been hera and the Prime Minister
etc. have been elected .."
We feel that these observations furnish an effective answer to the petitioner's objection that the
elections were not held wider 1973 Constitution. The elections have been held, Prime Minister
elected and a Cabinet formed. The country is being run by the civilian Govenuaest for the last
over 2h years. Article 24 ibid, therefore, in terms tif die Court judgment, is operating with full force.
Article 270-B of the Constitution also ordains that elections held under the Houses of Parliament
and Provincial Assemblies (Elections) Order, 1977 shall be deemed to have been held under the
Constitution.
13. The question was once again raked before the Supreme Court of Pakistan in the case
of Federation of Pakistan v, Malik Ghulatn Mustafa KJiar (PLD 1989 SC 26), but the Supreme Court
refrained froa expressing its opinion thereon, as will appear from the following observation:
"16, During the course of bearing of these matters, Mr, Abdul Mujib Peerzada, who appeared for the
petitioner in CP.S.LA. No. 429-K of 1987, raised the plea that the Parliament was not competent to
enact article 270-A, but then all the learned counsel agreed to keep this aspect of the matter out of
consideration for the tune being and thus no elaborate arguments were addressed on this plea. I would
therefore t?H refrain from expressing any view on it*.
14. Mr. S.M.Zafar, Learned counsel appearing on behalf of some of the respondents in this
case, has argued that validity has been assigned to all the President's Orders, Ordinances, Martial
Law Regulations or Orders issued or passed during the period in question by Article 27Q-A(1) of
the amended Constitution which has been held to be validly passed by the Supreme
Court, consequently, none of them can now be impugned in the present petitions. He has further argued
that the Eighth Amendment to the Constitution is a vital link between our past and the present and
in case it is knocked out the entire super structure which now stands thereon would crumble. The
devastation that would be caused in the process would
be enormous and at least the following
offices/institutions according to him, would be rendered non est:
(1) the President of Pakistan, (2) seven Muslim Members of the National Assembly, (3) four
Members elected against minority seats in the National Assembly, (4) twenty Members in the
National Assembly elected on women's seats, (5) the Prime Minister of Pakistan, (6) the Senate, (7)
the Chairman Senate, (8) the Federal Shairat Court and (9) the new Benches of the High
Court wherever established. Mr. AA. Fazeel, learned counsel also appearing for some of the
respondents, made a further addition to this list by including the names of the Federal Ministers, the
Ministers of State, the Advisors to the Prune Minister, the Provincial Ministers, the additional
female Members in the National Assembly, the Chairman Public Service Commission, the
Chairman Joint Chiefs of the Staff and other Chiefs of the Staff and the Chief Election
Commissioner thereto. The other counsel appearing on behalf of the private respondents also more
or less advanced similar arguments. The learned Attorney General, however, did not support the
Eighth Amendment.
15. As far as these contentions are concerned, the same have very elaborately been dealt with by the
learned Chief Justice in his judgment proposed to be given and I need not further express my opinion
thereon as no useful purpose would be served thereby, however one of the contentions raised on behalf of
the petitioners is that the assent to the Constitution (Eighth Amendment) Act, 1985 after it was passed by
the two houses, was given by General Muhammad Zia-ul-Haq, who was not a Constitutional President and
consequently, such assent could not clothe the
said Act with validity. Although the Hon'ble Chief Justice has dealt with this question in his judgment at a
great length, but I am unable to pursuade myself to agree with the conclusions reached by him, and I say so
with great humility and respect.
16. Mr. Abdul Mujeeb Prizada who is the petitioner in C.P. No. D-76/89 and Mr. Rasheed Akhund
learned counsel for the petitioner in C.P. No. D-168/89 have argued that the referendum held by General
Mohammad Zia^ul-Haq in 1984 was a fraud upon the Constitution as well as the people of Pakistan and was
also not in accordance with the provisions of the Constitution of 1973 but the same was
I held in pursuance of the will of an individual who intended to perpetuate himself I in power in defiance of all
cannons of rule of law and in breach of his own solemn [pledge given to the.nation.
17. It may be pointed out that the Referendum Order 1984 which was published in the gazette of
Pakistan, Extraordinary, dated 1st December, 1984, was promulgated by General Mohammad Zia-ul-Haq
in the exercise of the powers vesting in him under the Provisional Constitution Order, 1981. It is
not disputed that the Referendum Order was issued by General Mohammad Zia- l-
Haq while exercising his legislative powers both under the Provisional Constitution Order as well
as the Judgment of the Supreme Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977
SC 657). Consequently, the first question that arises is whether this court can go behind the motive of
the legislature and determine whether the legislation was bonafide.
18. In Ch. Qaseem-ud-Din v. Province of W. Pakistan (PLD 1959 W.P. Lah. 76) an Ordinance issued by
the then Governor of West Pakistan under Article 102 of the Constitution of 1956 was assailed before a
Division Bench of the Lahore High Court on the ground that the same had been issued for a collateral
purpose and was mala fide. An objection was raised that the court was not competent to go
behind the motive of the legislature. Repelling the objection, Kaikaus,J. observed as under:
"The power of the Governor which arises on account of an emergency is confined to the requirements of the
emergency. And if he promulgates an Ordinance not to meet the emergency but for a colleteral and
imporer purpose, his act can as much be impeached as any other act of the executive Government can be
impeached on the ground of mala fides. '•:•• The act though legislative in character remains an act of the
executive Government. Should the acts of the executive Government become immune from attack merely on
the ground that they take the form of Ordinances, little check will there remain on its mala fide action, because
it is easy for it to secure the promulgation of an Ordinance."
19. However, Yaqub AliJ. did not concur with Kaikaus, J. as according to him, any advice given by
Cabinet to the Governor under Article 71(7) m Chewy "carried with it the weight of the majority of the
Members of the accordingly the promulgation of the Ordinances was not an legislative act, which the
courts of law cannot set aside except by i _ authority of the Members of the Provincial Assembly to enact
laws «9»kh lie within their competence under the Constitution.
20. Although reference was made by KaikausJ. to the case of Punjab Province v. KJiizar Hayat
Tiwana (PLD 1956 FC 200) wherein a contrary view had been taken but the same was not followed by him as the
observations made by the Federal Court were not supported by any further discussion on the issue. However the
learned Judge relied upon the observations made in the case of Soon Hinq v. P. Crowley, Chief of Police of
the City of San Francisco (113 US 703) where Mr. Justice Field while delivering the opinion of the court said:
"The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed
hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling
of antipathy and hatred pre-vailing in the City and Country of San Francisco against the subjects of the Emperor
of China resident therein, and for the purpose of compelling those engaged in the laundry business to
abandon their lawful vocation, and residence there, and not for any sanitary, police or other legitimate purpose.
There is nothing, however, in the language of the ordinance, or in the record of its enactment, which in any
respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all
legislative bodies, that the Courts cannot inquire into the motives of the legislators in passing them, except as
they may be disclosed on the face of the Acts, or inferable from their operation, considered with reference to
the condition of the country and existing legislation. The motives of the legislators, considered as the
purposes they had in view, will always be presumed to be, to accomplish that which follows as the natural and
reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will
vary with the different members of the legislative body. The diverse character of such motives, and the
impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries
as impracticable and futile".
21. The next case referred to by Kaikaus, J. in his judgment is the case of Emperor v. Benoari Lai
Sanna (AIR 1945 P.C. 48). In this case an Ordinance was promulgated by the Governor General by virtue of
powers conferred on him by para 72 of the Ninth Schedule to the Government of India Act enabling him
to make and promulgate in case of emergency Ordinances "for the peace and good government of British
India or any part thereof. The Ordinance was attacked inter alia on the ground of non-existance of an
emergency as required by para 72 ibid. The attack was two-fold; (1) that an emergency did not exist and (2)
that although the preamble of the Ordinance stated that an emergency existed, the Governor General did
not in fact hold the opinion that an emergency existed and was only providing for emergency that may in
future arise. The Ordinance was held to be ultra vires by the Calcutta High Court and the Federal Court of
India. In the meanwhile Governor-General had promulgated another Ordinance in place
of the impugned Ordinance so that when the appeal came up for hearing before their lordships of the Privy
Council the question of validity of the Ordinance was more or less of academic interest. However their lordships
dealt exhaustively with the question raised, holding that:
"It is to be observed that the paragraph does not require the Governor General to state that there is an
emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming that he acts
bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that
the emergency exists. In the present instance, such questions are immaterial, for at the date of the Ordinance
(2nd January, 1942) no one could suggest that the situation in India did not constitute an emergency of the
most anxious kind. Japan had declared war on the previous 7th December, Rangoon had been bombed by the
enemy on 23rd December; and again on 25th December; earlier Ordinances had recited that an emergency had
arisen which required special provision being made to maintain essential services, to increase ^ certain
penalties, to deal with looting of property left unprotected by ' evacuation of premises and so forth".
22. In Jnan Prosanna v. Province of West Bengal (AIR 1949 Cal. 1) their lordships after going into
the question of mala fides held that the same were not proved. Same was the case in re Kalyanam
Veerabhadrayya (AIR 1950 Mad. 243).
23. A similar question also arose in Ziaur Rehman's case (PLD 1973 SC 49) and the Court was of the
opinion that it could competently determine the question whether the impugned legislative instrument was
conceived in bad faith or promulgated for any extraneous and collateral considerations, however
in Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) Muhammad Haleem Acting CJ. (as he
then was) while narrowing down the scope of judicial scrutiny in such sases, observed as follows:
"117. The words "competently" and validly" here have reference to the authority of the particular Legislature to
legislate in regard to legislative lists and other constitutional limitations. Clearly from these observations the
exertion of the legislative power, either by the elected Assembly or the President is not made dependent on any
motive, wisdom, policy or impolicy or any rule of jurisprudence etc. and further it seeks to avoid a conflict
between the two functional organs of the State....Again the observations of Hamoodur Rehman, CJ.
undoubtedly bear out that the constitutionality of an act depends upon the exercise of power within
constitutional limits and not upon motive or any other consideration."
In the final analysis the learned Acting Chief Justice observed:
"122. On principle there is no distinction between an Act and Ordinance as both are the product of the exercise
of legislative power. Therefore, it leads to the same conflict if it were to be struck down on the ground of mala
fides a contigency which has been strongly deprecated for the all embracing reasons in the aforementioned
decision. In Zia-ur-Rehman's cases, Hamoodur Rehman, C.J., expressed himself alike at page 77 of the report:
With political decisions or decisions on questions of policy, the judiciary is not concerned. Its function is to
enforce the Constitution and to see that the other organs of the State confine themselves within the limitations
prescribed therein."
24. This question was also considered by Muhammad Afzal Lone, J. in the case of Malik Ghulam
Mustafa KJtar v. Pakistan reference to which has been already made earlier in this judgment. It has been
observed by the learned Judge; "The reason that the power of judicial review is not available for questioning
the wisdom of law-giver and the propriety of the law made by him, is that under the structural features of the
constitution, prescribing trichotomy of powers, one organ of the State docs not usurp the powers of the
other. The limits of the spheres of the Legislature, Executive and Judiciary are enumerated in
the constitution. This separation of power, is, the pivotal feafure of the federalism and ensures rule of law in a
Constitutional Government."
25. However, an exception was made by the learned Judge in case of a person who was acting as the
Chief Martial Law Administrator during the Martial Law. It was thus observed: "Thus as long as the law is
competently made, the Courts which are the creation of Constitution, do not interfere with the discretion
exercised by the Legislature in enacting a particular law. This principle, however, cannot be extended to the
Chief Martial Law Administrator, who during Martial Law, weilded all powers of State authority, and
exercised the legislative and executive powers untrammelled by any limitation. As regards the judiciary
no doubt, the ordinary Courts were not closed but they exercised their functions within the field un-
occupied by the Military Courts and the Martial Law Authorities. To that extent even with regard to
judiciary, the paramount power vested in the Chief Martial Law Administrator. In these circumstances, it is
not possible to equate the Chief Martial Law Administrator with a representative
legislature, and the immuniiy available to such a Legislature conferred on him."
26. Although our constitution envisages trichotomy of powers and the limits of the sphere within which
each organ of the State can act are defined, but the acts of a Martial Law Administrator arc always liable to be
subjected to a judicial scrutiny. In this respect no distinction can be drawn between the acts which
are legislative or executive in nature. Even in Soon Hing v. Cmwley to which I have earlier referred, Mr.
Justice Field has made on exception in the case of cases where the motives of the Legislators are
inferable on the face of the Acts. Influenced by these observations, it was further held by Kaikaus, J. in the
case of Qascem-ud-Din v. Province of West Pakistan that "the act though legislative in character remains an
act of the Executive Government". He further observed:
"Should the acts of the executive Government become immune from attack merely on the ground thai they
take the form of Ordinances...."
27. General Mohammad Zia-ui-Haq although promulgated the Referendum' Order 1984 while
excidsing his legislative powers vesting in him under the Provisional Constitution Order but the Court
can hardly be oblivious of the fact that it was the same individual who was exercising both the executive as
well as the legislative functions. His legislative functions, therefore cannot be outside the pale of judicial
scrutiny. In this behalf I am further fortified by the observations of Muhammad Af/al Lone, J. in the case
of Malik Ghulam Mustafa Kliario which I have already referred earlier, in the case of Fauji
Foundation v. Shamimur AO Rahman no doubt Martial Law Regulation No. 103 had been impugned by
the respondent and one of the grounds of attack was that the said regulation had been
issued mala fide, but the Supreme Court was of the view that mala fides must be first established and the
same could not be presumed or inferred in absence of sufficient material placing before the court in this
behalf. However the context in which the present case is being examined is not the same, because the
contention raised on behalf of the petitioners is thai mala fides are disclo-. J on the face of the legislation
itself which has been impugned by them.
28.1 am consequently of the view that this court is competent to go into the .question of mala fides raised by
the petitioners.
29.. However, before undertaking an examination of the Referendum Order, I would first like to deal with
another important aspect of the matter. Assuming that General Mohammad Zia-ul-Haq was not a
constitutional President but it is not disputed that for all practical purposes he was a de facto President,
having appointed himself as such after the resignation of Ch: Fazal Ellahi by virtue of clause 3 of the
President's Order 13 of 1978 which he himself issued in pursuance of the powers vesting in him under
Proclamation of Fifth July 1977 read with Laws (Continuance in Force) Order, 1977 The question, therefore,
arises whether his actions were saved by de facto doctrine which has been held by the Courts to give AS validity
to the holders of de facto office notwithstanding any defect found in their appointment. The doctrine is founded
upon the consideration of public policy and necessity and for the protection of individuals whose interests may
be effected. In Lt. Col. FarzandAH and others v. Province of West Pakistan (PLD 1970 SC 98) the petitioners
had challenged their retirement on the ground that the amendments made in the constitution by Acts IV and
XV of 1965 and II of 1966 were passed by majority votes which included thirty-three persons who were not
qualified under Article 103 of the Constitution of 1962 as it stood originally and as such power .assumed by the
government in retiring them was not lawfully acquired. It was held by their Lordships of the Supreme Court that:
"Upon these principles it was strenuously argued that the Third, Fourth and Sixth Constitutional Amendments
are now unassailable because at any rate the allegedly disqualified respondents had acted as de facto members,
for, they had acted under the bona fide belief that they were entitled to so act and had at least a fair colour of title
and they have also performed their duites with public acquiescence. They were not purely intruders. Therefore,
their acts even apart from the provisions of sub-clause (d) of clause (1) of Article 110 were as good as those
of de jure members of the National Assembly. There is a great deal of force in this contention and since this is
not a direct attack upon their right to continue as members, their acts should not be invalidated merely
because they could have been found in a proper proceeding under Article 98(2)(b) to be disqualified from
continuing as Members of the House to do so collaterally in proceedings not taken to lest the validity of their
tille directly would lead to serious inconvenience to the public and those individuals whose interests have been
affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to
bring about regularity and prevent confusion in the conduct of public business and promote security of private
rights."
30. This case was followed by a Division Bench of this Court in the case of Abdul Salam Qnrcshi v. Judge,
Special Court of Banking of Sind (PLD 1984 Kar. 462). The petitioner in this case had assailed the
appointment of the Special Courts Banking for Sind on the ground that the person who was appointed
a Judge thereof was not legally qualified, Naimuddin,.!. (as he then was) while extensively quoting from
precedents concluded that the orders, judgments and decrees passed by the then Judge, Special Court Banking
were saved by de facto doctrine. Reference was also made by him to a passage from
Coney's Constitutional Limitations, 8lh Edn., Vol.2 p.1357 which reads as follows:
"No one is under obligation to recognize or respect the acts of an intruder and for all legal purposes they are
absolutely void. But for the sake of order and regularity and to prevent confusion in the conduct of public
business and in security or private rights the acts of Officers de facto are not suffered to be questioned because
of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by
someone claiming the office de jure or except when the person himself attempts to build up some right, or
claim some privilege or emolument, by reason of being the Officer which he claims to be. In all other cases the
acts of an Officer de facto are as valid and effectual, which he is suffered to retain the office, as though he were
an Officer by right, and the same legal consequences will flow from them for the protection of the public and
of third parlies. This is an important principle, which finds concise expression in the legal maxim that the acts
of Officers de facto cannot be questioned collaterally."
31. Reference was also made by Naimuddin, J. to the observations made in Kilward v. Tliatchcr (1787)2
T.R. 81 and Scaddin v. Lorant (1851) 3 H L C 418. In the first case it was held that:
"The question whether the judges below be properly judges or not, can never be datermincd, it is sufficient if
they be Judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the
Recorder of such Court were not duly elected, the conviction would still be good in law, he being the Judge de
facto".
In the second case the question arose whether a rate for the relief of the poor was rendered invalid for the reason
that some of the vestrymen who made it were vestrymen de facto and not de jure. The Lord Chancellor said as
follows:
"With regard to the competency of the vestrymen who were vestrymen de facto, but not vestrymen dc jure, to
make the rate, your Lordship will see at once the importance of that objection, when you consider how
many public officers and persons there are who were charged with very important duties, and whose tide to
the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead
i.f the validity of their acts, when in such office, depended upon the propiicty of their election. It might tend, if
doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with
respect to the obedience to public Officers and it might also lead to persons instead of resorting to ordinary legal
remedies to set right anything done by the Officers, taking the law into their own hands".
32. Cases have also been cited by Naimuddin, J. from the Amrican jurisdiction.
In Stale v. Gardner (Cases on Constitutional Law by MC. Convey & Haward, p.102) a question arose
whether the offer of
a bribe to a City Commissioner whose appointment was unconstitutional was an offence. Bradbury,
J. observed "We think that principle of public policy, declared by the English Courts three centuries ago, which
gave validity to the official acts of persons who intruded themselves into an office to which they had not been
legally appointed, is as applicable to the conditions now presented as they were to the conditions that then
confronted the English Judiciary. We are not required to find a name by which Officers are to be known, who
have acted under a statute that has subsequently been declared un constitutional, though we think such
Officers might aptly be called de facto Officers".
33. In Norton v. Shelby County (1886) 118 US 425 it was observed:
"The doctrine which gives validity to acts of Officers dc facto whatever defects there may be in the legality of
their appointment or election is founded upon considerations of public policy and necessity, for the protection
of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the
public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of
such Offices and in apparent possession of their powers and functions. For the good order and peace of society
their authority is to be respected and obeyed until in some regular mode prescribed by law their title is
investigated and determined. It is manifest that endless confusion would result, if in every proccdding before
such Officers their title could be called in question."
34. Cases have also been cited by Naimuddin,J. from the Indian jurisdiction. The Supreme Court of India
in Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473) held that:
"A Judge, de facto is one who is not a mere intruder or usurper but one who holds office, under colour of
lawful authority, though his appointment is defective and may later be found to be defective. Whatever
the defect of his title to the office, judgments pronounced by him and acts dune by him when he- was dollied
with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced
and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent
needless confusion and endless mischief. The de facto doctrine saves such acts. There is yet another rule also
based on public policy. The defective appointment ol a dc facto Judge may be questioned directly in
a proceeding to which he be a parly but it cannot be permitted to be questioned in litigation between two
private litigants, a litigation which is of no concern or con.scquencc to the Judge except as Judge, Two
litigants litigating their private titles cannot be permitted to bring the issue and litigate upon the title of a Judge
to his office. Otherwise as soon as a Judge pronounces a judgment a litigation may be commenced for
a declaration that the judgment is void because the Judge is no Judge. A Judge's tide to his office cannot be
brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of
judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a
collateral attack",

35. The de facto doctrine was also pressed into service by the High Court of Lahore in Malik Ghulain
Jillani v. Province of Punjab (?LD 1979 Lah. 564). In this case a challenge to the assumption office of the
"President" of Pakistan by General Mohammad Zia-uI-Haq was thrown by the petitioner. A mercy petition had
been filed by Zuifiqar A!i Bhutto, the former Prime Minister of Pakistan for grant of
pardon to him. The prayer in the petition was to restrain respondent Mohammad Zia-u!-Haq from considering
or rejecting the mercy petition and for stay of the execution of the death sentence passed against Zuifiqar AH
Bhutto, pending the final decision of the petition. However, the Lahore High Court dismissed the petition.
Aftab Ahmad, J, one of the "learned judges constituting the Bench while
referring to the case of Farzand Ali dismissed the petition in limine,
36. A question, therefore, arises whether de facto doctrine can be pressed' into service in the present
case, because in the present case challenge has been thrown not merely to some actions taken by General
Mohammad Zia-ul-Haq as the President of Pakistan but to the amendments introduced into the Constitution
AT which have drastically altered its main features. Article 239 of the Constitution!
requires the assent by the President to every amendment in the
Constitution, passed by the Parliament. Article 239(2) before its amendment by the! Constitution
(Eighth Amendment) Act, 1985 provided that:"(2) If the Bill is passed by the Senate by a majority of the
total membership of the Senate it shall be presented to the President for assent."
Article 239(2) after its amendment by the said Act, now provides:
"(3) If the bill is passed with amendment by the votes of not less then two-thirds of the total membership
of the House to which it is transmitted under clause (1), it shall be reconsidered by the House in which
it had originated, and if the Bill as amended by the former House is passed by the latter by the votes of not
less than two-thirds of its total membership it shall, subject to the provisions of clause (4), be presented to
the President for assent.
We are not concerned here wifh the provisions of clause (4), but what can clearly1 be spelt out from the
provisions of Article 239, ibid (whether in their original or amended form) is that the assent of the President
is required before a Bill passed by the two Houses can become an Act of the Parliament. There can hardly be
any AU doubt that reference to the President in Article 239 read with article 75 of the Constitution does
not mean to a person who is a President de facto but to a; Constitutional President. Consequently, in my
opinion, the question cannot be; determined by merely calling in aid the de facto doctrine.
37. I may now turn to the Referendum Order, 1984. This Order which was issued by General
Mohammad Zia-ul-Haq was published in the Gazette of Pakistan Extraordinary, dated 1st December, 1984.
As indicated by clause 4 of the Order, the following question was referred to referendum:
"Whether the people of Pakistan endorse the process initiated by General Mohammad Zia-ul-Haq, the
President of Pakistan, for brining the laws of Pakistan in conformity with the Injunctions of Islam as laid
down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon him) and for the preservation
of the Ideology of Pakistan, for the continuation and consolidation of that process and for the smooth and
orderly transfer of power to the elected representatives of the people".
According to Clause (5) of the Order, "The question shall be answered either by "Yes" or "No". Clause 7 of
the Order which refers to the consequences of declaration of the result, then provides; ,
"If maj'ority of the votes cast in the referendum is in favour of the answer "Yes", the people of
Pakistan shall be deemed to have endorsed all steps taken by the President of Pakistan for bringing
the laws of Pakistan in conformity with the Injunctions of Islam as laid down in the Holy
Quran and Sunnah of the Holy Prophet (peace be upon him) and for the preservation of the
Ideology of Pakistan and for the continuation and consolidation of that process and for the smooth
and orderly transfer of power to the elected representatives of the people;
and General Mohammad Zia-ul-Haq shall be deemed to have been duly elected President of
Pakistan for a term of five years from the day of the first meeting of the Houses of Parliament in
joint sitting".
(The underlining is mine.)
38. It will thus be seen that although the referendum was purportedly held to ascertain the will of the
people of Pakistan, whether General Mohammad Zia-ul-Haq was acceptable to them as the
President of Pakistan, but the question referred to the referendum was clearly misleading and
even if the majority of votes cast at the referendum were "Yes" votes, yet by no measure of
reason it could be inferred that General Mohammad Zia-ul-Haq had been elected as the President
of Pakistan. In a country where the majority of the population consists of muslirns, the approval
given by them to the new process of Islamisation initiated by General Mohammad Zia-ul-Haq
can by no stretch of imagination be equated with approval for his continuance in office of the
President of Pakistan. A V! Even to a man of ordinary prudence it would clearly appear that there
was no nexus between the votes cast in favour of the answer "Yes" and the election of General
Mohammad Zia-ul-Haq as the President of Pakistan. The General therefore, was the President
not by virtue of the referendum which he professed to hold by Referendum Order, 1984 but by a
fiction of law by virtue of the deeming provision embodied in Clause 7 of the Referendum
Order, which provided that "General Mohammad Zia-ul-Haq shall be deemed to have
been duly elected President of Pakistan " The Referendum Order was therefore,
a legislation in bad faith and mala fide because in reality it was not what it ostensibly
appeared to be. In Federation of Pakistan v. Saecd Ahmad KJian and .others (PLD 1974 SC 151)
it was observed:
"Male fide literally means "in bad faith". Action taken in bad faith Js usually action taken
maliciously in fact, that is to say, in which the person taking the action does so out of personal
motives either to hurt the person against whom the action is taken or to benefit oneself. Action
taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by
law under which the action is taken or action in fraud of the law are also mala fide...."

39. Mr. Rasheed Akhund has further contended that the method for election of the
President provided in the Constitution was different and according to
its modern concept, "referendum" is held only for submitting some legislative measures
to direct vote of the people. He also referred to the meaning of "referendum" in Black's
Law Dictionary which is as follows:"In the modern Constitutional law of Switzerland and
elsewhere a method of submitting important legislative measure to direct vote of the whole
people Right reserved to the people to adopt or reject any Act or measure which has been
passed by legisaltivc body, and which in most cases, would without action on the part of the
electors become a law".
40. Before Article 41(3) of the Constitution was amended by the Constitution (Eighth
amendment) Act, 1985, the method of election of the President provided thereby was as follows:
"(3) The President shall be elected by the members of Parliament in joint sitting in accordance with the
provisions of the Second Schedule".
However, Article 41 was amended by the Revival of the Constitution of 1973 Order, 1985 (President's
Order 14 of 1985) and after its amendment Article 41(3) presided- as follows:
"(3) The President to be elected after the expiration of the term specified in clause (7) shall be elected in
accordance with the provisions of the Second Schedule by the members of an electoral college consisting of
—
(a) the members of both Houses; and
(b) The members of the Provincial Assemblies." Clause (7) of Article 41 further
provided that:
"(7) Notwithstanding anything contained in this Article or Article 43, or any other Article of the
Constitution or any other law, General Mohammad Zia-ul-Haq, in consequence of the result of the
referendum held on the nineteenth day of December, 1984 shall become the President of Pakistan on the
day of the first meeting of Majlis-e-Shoora (Parliament) in joint sitting summoned after the elections
to the Houses of Majlis-e-Shoora (Parliament) and shall hold office for a term of five years from that day;
and Article 44 and other provisions of the Constitution shall apply accordingly."
41. Clauses (3) and (7) ibid thus show that after the said amendments first' General
Mohammad Zia-ul-Haq was to become the President of Pakistan on
the day of the first meeting of "Majlis-e-Shoora (Parliament) in joint sitting summoned after the
elections to the two Houses and after the expiration of the period referred to in clause (7), the elction of the
President was to take place in
"""" accordance with clause (3) of Article 41, which obviously was a marked deviation AW from the
original Article 41(3). However, even if it is assumed for the time being that the Revival of the Constitution
Order, 1985 was a valid piece of legislation, the assumption of the office of the President of Pakistan by
General Mohammad Zia-ul-Haq by virtue of Clause (7) of Article 41 after promulgation of the Revival of the
Constitution of 1973 Order, 1985 was by means of the referendum held on, ;the 19th day of December,
1984. As the said Referendum Order as pointed out earlier, was a colourable legislation meant to achieve a
desired result by means of a deceit, as is disclosed by its various provisions already referred to by me, such
legislation was liable to be declared void, and in my opinion, General Mohammad Zia-ul-Haq did not
enjoy a de jure status as the President of Pakistan.
; Consequently, can the assent given to the said Bill by a person who did not enjoy a de jure status clothe the
Constiluion (Eighth Amendment) Act 1985 with validity? The competency of the Parliament to amend the
Constitution is subject to the i restrictions imposed by Article 239 of the Constitution. No amendment to
the | Constitution of 1973 can be valid unless it is strictly made in accordance with the
procedure provided by Article 239 of the Constitution.
42. The question relating to the validity of the eighth amendment too was examined by the Supreme
Court in Federation of Pakistan v. Malik Gliulam Mustafa Kar (PLD 1989 SC 29) and it was held to be a
valid legislation. However, the contention raised before the Supreme Court was as follows:
"................ Mr. U. Niamat Moulvi who appeared on behalf of of the appellant in Civil Appeal No. 285 of 1987.
He argued that the Constitution (Eighth Amendment) Act 1985, which introduced Article 270-A in
the Constitution was still a Bill and not an Act of Parliament and for that technical reason it did not form part
of the Constitution. While elaborating his contention he stated that the date on which the Bill was passed, the
Provisional Constitution Order was still in force and under the Order there was no requirement that the
President should give assent to the bills passed by the Majlis-e-Shoora. He further contended that even
though by a notification issued under section 4 of the Revival of Constitution, Order most of the provisions of
Constitution, as amended, stood revived, yet in the presence of the Provisional Constitution could not become
alive again as there could not be possibly two Constitutions governing the State simulteneously."
This argument was repelled by the Supreme Court. However as is evident from the argument itself, the
question raised before the Supreme Court was different. It is also pertinent to point out that earlier, the
challenge to the Eighth Amendment was repelled by the High Court, holding that after the amendments to
the Constitution were approved by the Parliament, the amendments had attained validity. (See Malik Glnilam
Mustafa Kliar v. Pakistan (PLD 1988 Lah. 49=PLJ 1987 Lahore 669). It is therefore ,lear that the question
now raised before us was not raised either before the F.gL Court or the Supreme Court in the case
of Gulam Mustafa Khar. Therefore, notwithstanding the two judgments, the question raised in regard to the
validity of t ie said Amendment can be re-examined by us.
43. However, this does not dispose of the matter as it remains to be considered whether the
Referendum Order, 1984 can be subjected to a judicial review in view Article 270-A which was
incorporated in the Revival of the Constitution Order, 1985. Article 270-A in the said Order provides as
follows:
"270-A. Validation and President's Order, etc.~(l) The Proclamation of the fifth day of July, 1977, all
President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the fifth
day of July, 1977, and the date on which this Article comes into force, are hereby declared, notwithstanding
any judgment of any court, to have been validly made by competent authority and, notwithstanding anything
contained in the Constitution, shall not be called in question in any court on any ground whatsoever.
(2) All orders made, proceedings taken and acts done by any authority, or by person, which were made,
taken or done, or purported to have been made, taken or done, between the fifth day of July, 1977, and the date
on which this Article comes into force, in exercise of the powers derived from any Proclamation,
President's Orders, Martial Law Regulations, Martial Orders, enactments, notifications, rules, orders bye-
laws, or in execution of or in compliance with any order made or sentence passed by any authority in the exercise
or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any court, be deemed to
be and always to have been validly made, taken or done and shall not be called in question in any court on any
ground whatsoever.
(3) All President's Orders, Martial Law Regulations, Martial Law Orders, enactments,
notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes
into force shall continue in force until altered, repealed or amended by competent authority.
(4) No suit, prosecution or other legal proceedings shall lie in any court against any authority or any
person, for or on account of or in respect of any order made proceedings taken or act done whether in the
exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with
orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4) all orders made, proceedings taken or done
by any authority or person shall be deemed to have been made taken or done in good faith and for the
purpose intended to be served thereby.
(6) Any of the President's Orders referred to in clause (1) may be amended in the manner
provided for amendment of the Constitution".
44. A pcrsual of Article 270-A shows that clause (1) of Article 270-A provides a blanket
protection to the Proclamation of the fifth July, 1977, and all President's Orders, Martial Law Regulations,
Martial Law Orders and all other laws made between the fifth day of July, 1977 and coming into force of the
Revival of the Constitution Order and no such Acts or Orders etc. can be called in question in any
Court on any ground whatsoever. Clause (2) of the Article provides further protection to all orders,
proceedings, actions made or taken during such period.
45. Now, since General Mohammad Zia-ul-Haq became the President of Pakistan by virtue of
Article 41(7) as incorporated in the Schedule to the President's Order 14 of 1985 and Article 270-A in the
said Order provided validity to all President's Orders, Martial Law Regulation, Martial Law Orders and
all other Laws made on or after fifth July, 1977, the question arises whether the Referendum Order, 1984
and the amendments incorporated in the Revival of Constitution Order can he subjected to a judicial scrutiny. It
may be pointed out that General Mohammad Zia-ul-Haq initially assumed legislative powers including
power to amend the Constitution by virtue of the Supreme Courts' Judgment in Begum Nusral Bhutto's
case, ibid. Such powers were given to him by the Supreme Court while invoking the doctrine of necessity, which"
as held by the Supreme Court itself, is a doctrine of condonation and not validation. Notwithstanding the
fact that the Supreme Court in the case of Zulfiqar Ali Bhutto (PLD 1978 SC 40) and this court in Haji
Abdullah's case (PLD 1980 Kar. 498) held that such power was not subject to restrictions and
thereafter, Provisional Constitution Order 1981 was promulgated, the Revival of the Constitution Order,
1985 and Article 41(3) and (7) incorporated therein cannot hold the same status as Constitutional provisions
and acquire immunity from judicial review under Article 270-A, as incorporated in the said
Order. Furthermore the Provisional Constitution Order under which the Revival of the Constitution Order was
promulgated, itself could not enjoy the same status as a constitutional instrument without grant of validation by
the Parliament (See p.84 of Slate v. Ziaur Rahman PLD 1973 SC 49). Refering to Article 270-A,
now incorporated in the Constitution, the learned Chief Justice in Miss Benazir Bhutto v. Federation of
Pakistan (PLD 1988 SC 416) said:
".................... During the specified period, the Constitution was in abeyance and so were the fundamental
rights. Therefore, the power to enact legal measures which was derived from the proclamation of fifth day of
July, 1977, and the Laws (Continuance in Force) Order was without any limitation as to the subject of
legislation. There was no occasion, however, for any conflict of the legal measures, the state of things
then existing with any constitution."
It was further observed:
"Having regard to the purpose of validation the defects in the legal measures when enacted during the
specified dates had to be cured in the state of things as they existed which, of course, did not include
any violation of a Constitutional norm; and validity in this context could not be said to have achieved anything
more than this".
However, Mr. Justice Muhammad Haleem was examining the effect of Article 270-A after it was incorporated
in the Constitution. Article 270-A as embodied in „ the Revival of Constitution Order cannot assume the
same status. Therefore in my opinion, the Revival of Constitution Order 1985, notwithstanding Article 270-A
incorporated therein is not immune from judicial review under Article 199 of ,the Constitution.
47. In Saecd Ahmad's case, ibid, the following observations made by Hamoodur Rchman, C.J., appear
at page 172 of the report:
"For the reasons given above, we have come to the conclusion that the High Court rightly decided the
preliminary objection. Action or proceedings taken without jurisdiction or mala fide or orders of judicial or
</«a.«'-judicial nature which arc coram non judice are not validated by either clause (2) of Article 281 of the
Interim Constitution as amended by the President's Order No. 3 of 1973 or by clause (2) of Article 269 of the
Permanent Constitution".
In Shamimur Reham v. Government of Pakistan (PLD 1980 Kar. 345), SA.Nusrat,, J. who delivered the
judgment of the Division Bench observed:
"If therefore, it can be successfully demonstrated that a legislative instrument was conceived in bad faith and
enacted mala fide or for any collateral purpose there seems no reason for holding that such an instrument
could not be declared void".
The judgment hi the above case was not upheld by the Supreme Court but the facts of the present case are
distinguishable as mala fides appear on the face of the Referendum Order. Even in the said case decided
by the Supreme Court (PLD 1983 SC 457) Zafar Hussain MirzaJ. did not concur with the opinion of
the Hon'ble Acting Chief Justice vis-a-vis the concept of limitation on the judicial power of scrutiny, although
he agreed with him on all other issues involved in the case. M.S.H. Qureshi, J. agreed only to the extent that
Martial Law Regulation No. 103 was immune from scrutiny by virtue of Art. 281(1) and Art. 269(1) of
the interim and permanent Constitutions respectively. Shafiur Rehman, J. however fully concurred with the
Hon'ble Acting Chief Justice.
48. I now turn to the apprehensions shown by Mr. S.M.Zafar and Mr. AA..Fazeel, according to whom, many
important offices and institutions would be rendered on est if the said amendments to the Constitution are held
to be null and void. The size of the National Assembly has been altered by amendment of Art. 51 of the
Constitution and the number of seats therein has been increased. So is the case with Senate as the number of
its Members has been increased from 63 to 87. (See Article 59 of the Constitution). The electoral college for
the election of President has been altered by amendment of Article 41(3) of the Constitution. The mode of
appointment of the Prime Minister has also been altered. (Article 91(2) of the Constitution). All such offices
and institutions would therefore be rendered non est, according to S.M.Zafar, and many others as referred to
by him. Although the apprehensions shown by the learned counsel are not incorrect and I am not unmindedful
of the duty cast upon us to preserve rather than destroy the legal order now existing in the country, particularly
when it is still in the process of complete transition from Martial Law to a democratic order and as was
observed by Shafiur Rehman, J in Federation of Pakistan v. Muhammad Saifullah Klian (PLD 1989 SC 166),
"the court will stand for constitutionalism rather than departures and deviation from it" but as was observed
by the Supreme Com? in MissAsma Jilani v. Government of Punjab (PLD 1972 SC 139), all such acts
which tend to advance or promote the good of the people required to be done for the ordinary orderly running
of the State can be condoned. Hamoodur Rehman, C J., at page 206 of the report in the said case has observed:
"I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it
would result in disastrous consequences to the body politic and up§et the social order itself but I respectfully
beg to disagree with the view that this is a doctine for validating the illegal acts of usurpers in my humble
opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts
of the usurper were illegal and illegitimate. It is only then that the question arises as to how many of his
acts, legislative or otherwise should be condoned or maintained notwithstanding their illegality in the
wider public interest. I would call this a principle of condonation and not legitimization.
"Applying this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be
served by reopening them (2) all acts and legislative measures which are in accordance with, or could have
been made under, the abrogated Constitution or the various legal order, (3) all acts which tend to advance or
promote the good of people, (4) all acts required to be done for the ordinary running of the State and all such
measures as would establish or lead to the establishment of, in our case, the objective mentioned in the
Objectives Resolution of 1949. I would not, however, condone any act intended to entrench the usurper more
firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not
also condone anything which seriously impairs the rights of the citizens except in so far-as-they may be designed
to advance the social welfare and national solidarity."
49. Following the observations made by Hamoodur Rehman, C.J., in the aforesaid case, the National
Assembly elected under the amended Constitution may continue to function till the next Assembly is
elected by the people of Pakistan in accordance with the provisions contained in the Constitution of 1973 in
its original form, the elections of the President and the Prime Minister untill
the expiry of their present term of office likewise may also not be disturbed. Similarly, all appointments
made under the amended Constitution may continue to remain valid as if they were made under the 1973
Constitution, unamended. I would also condone all other acts and transactions which advance or promote
the good of the people and which are for the advancement of the democratic order in Pakistan. However, the
Senate cannot continue to function, being a permanent body. Mr. S.M. Zafar has referred to clause (3) of
Article 59 of the Constitution, according to which "The Senate shall not be subjected to dissolution".
However, no obstacle has been created for the courts and the Senate if not constituted in accordance with
the Constitution can be declared as non est by the courts under Article 199 of the Constitution. No
doubt we have taken oath under the .Constitution to preserve and protect it but can we sustain a
provision thereof which is ab initio void? The power to declare such provision as non est is inherent in the
courts under article 199 of the Constitution.
50. In the result, I would allow these petitions and declare the Constitution
(Eighth Amendment) Act 1985 and the impugned amendments in the Constitution as null and
void and of no legal effect. I would further hold that the election to and the constitution of the Senate and the
extention of the term of its
J Members from four to six years is violative of the Constitution and hence without ] lawful authority.