FAROOQ AHMED KHAN LEGHARI Versus FEDERATION OF PAKISTAN
1. AJMAL MIAN, C.J.--By this common judgment, I intend to dispose of the above five Constitution Petitions which have been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), assailing the imposition of Emergency by the President on 28-5-1998 under Article 232(1) of the Constitution and the order dated 28-5-1998 under clause (2) of Article 233 of the Constitution, suspending the enforcement of all the Fundamental Rights. The petitioner in Constitution Petition No. 10 of 1998 is the former President of Pakistan, Sardar Farooq Ahmed Khan Leghari; the petitioner in Constitution Petition No. l l of 1998 is a Senator and the President of Awami National Party, Mr. Ajmal Khattak; the petitioner in Constitution Petition No. 12 of 1998 is a practising advocate and a member of the Executive Committee of Supreme Court Bar Association, Mr. Ghulam Qadir Jatoi; the petitioner in Constitution Petition No. 16 of 1998 is a former Chief Minister of Punjab and a politician, Mian Manzoor Ahmad Wattoo; and the petitioner in Constitution Petition No. 17 of 1998 is Mr. Imran Khan, Chairman of a political party Tehrik-e-Insaf.
2. It may be observed that on 15-6-1998 Constitution Petitions Nos. 10, 11 and 12 of 1998 had come up for summary hearing before a Bench comprising one of us (Ajmal Mian, C.J.) and two Hon'ble Judges when the notices were ordered to be issued to the learned Attorney-General for Pakistan, the learned Advocates-General of the Provinces, the respondents, the Pakistan Bar Council and the Supreme Court Bar Association, to assist the Court inter alia on the following two questions:-
(i) ???????? Whether the above petitions are maintainable; and
(ii) ??????? Whether the above Proclamation issued under clause (1) of Article 232 and the Order under clause (2) of Article 233 of the Constitution are in consonance with that provision.
2. The petitions were listed for hearing on 29-6-1998. It was also ordered that the office would obtain a Chamber order for fixation of the aforesaid petitions before a larger Bench.
3. It seems that after the passing of the above order on 15-6-1998, the aforementioned Constitution Petitions Nos. 16 and 17 of 1998 were filed, which were ordered to be listed alongwith aforestated earlier three Constitution Petitions. The above Constitution Petitions came up for. hearing on 29-6-1998 before a Full Bench of seven members comprising myself and first six Hon'ble Judges. The learned counsel for the petitioners submitted their arguments on the question of maintainability of the aforesaid Constitution Petitions. The learned Attorney-General also made brief submissions but eventually it was ordered that the question of maintainability of the petitions would be decided alongwith the merits of the same, which course was adopted by this Court in the case of Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473. Since the matter needed urgent hearing for the reason that Emergency was imposed in the country and the enforcement of the Fundamental Rights was suspended, it was ordered that the above Constitution Petitions would be heard during summer vacations (which were to commence with effect from 6th July, 1998) at Lahore on 13-7-1998.
4. The aforementioned Constitution Petitions came up for hearing at Lahore on the above date but at the request of the learned Attorney-General, the same were adjourned for the following day on the ground that a summary was being submitted to the President of Pakistan for modification of the order passed under clause (2) of Article 233 of the Constitution. When the above petitions again came up for hearing on 14-7-1998, Ch. Muhammad Farooq, learned Attorney-General, submitted an order of the President of Pakistan dated 13-7-1998 varying the earlier order dated 28-5-1998 suspending the enforcement of all the Fundamental Rights.
3. It will not be out of context to mention that nobody appeared for Senator Ajmal Khattak in the hearing on 13-7-1998 and thereafter till the conclusion of the case on 28-7-1998 at Lahore. However, we have not dismissed his Constitution Petition No. 11 of 1998 as in any case we were to decide the points involved in the other four Constitution Petitions.
5. Before stating the contentions advanced by the learned counsel for the parties, the learned Attorney-General and the learned counsel appearing as amicus curiae, I may refer to the above order of imposition of Emergency and the suspension of enforcement of the Fundamental Rights and in brief the pleadings of the parties.
4. "Proclamation of Emergency dated 28-5-1998 under clause (1) of Article 232 of the Constitution:
PROCLAMATION OF EMERGENCY
5. Islamabad, the 28th May, 1998
6. No.7-3/98-Min.I. Whereas the President is satisfied that a grave emergency exists in which the security of Pakistan is threatened by external aggression and by internal disturbance beyond the power of Provincial Governments to control.
7. Now, therefore, in exercise of the powers conferred by clause (1) of Article 232 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to issue hereby this Proclamation of Emergency. "
8. Order dated 28-5-1998 under clause (2) of Article 233 of the Constitution:
9. Whereas clause (2) of Article 233 of the Constitution of the Islamic Republic of Pakistan provides that while a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of the Rights so specified, shall remain suspended for the period during which the Proclamation of Emergency is in force;
10. And whereas a Proclamation of Emergency is in force;
11. Now, therefore, in exercise of the powers conferred by the said clause (2) of Article 233, the President is pleased to declare that the right to move any Court, including a High Court and the Supreme Court for the enforcement of all the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, and all proceedings pending in any Court which are for the enforcement, or involve the determination of any question as to the enforcement, of any of the said Rights, shall remain suspended for the period during which the said Proclamation is in force.
12. Variation order dated 13-7-1998 under clause (2) of Article 233 of the Constitution:
13. No.43/1/98-Min.
1. In exercise of the powers conferred by clause (2) of Article 233 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to vary the order made on the 28th May, 1998, as follows:-
14. In the said Order, in the third paragraph ? for the words 'all the Fundamental Rights conferred by Chapter 1 of Part II' the words and figures 'the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25' shall be substituted."
6. The basic plea raised by the petitioners is that the pre-conditions laid down in clause (1) of Article 232 of the Constitution did not exist inasmuch as no Emergency, let alone "a grave Emergency existed or exists in Pakistan". It has been further pleaded that it could certainly not be said with any justification that the security of Pakistan stood or stands threatened by war or external aggression or by internal disturbance beyond the power of Provincial Governments to control. It has also been pleaded that the imposition of Emergency is an act of malice in law as the Proclamation and the order suspending Fundamental Rights could not be made without any cogent reasons.
15. Reference has also been made to the chequered history of the imposition of Emergency for long periods in Pakistan and the factum how the vested interests tried to perpetuate their rule.
16. Without prejudice to the above, in the alternative, it has been pleaded that there is certainly no justification for suspension of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution inasmuch as on the Government's own showing, the entire nation is behind the present Government in the matter of conducting nuclear explosions and in the matter of ensuring the security of Pakistan. It has further been averred that it is obviously tragic that the citizens of Pakistan who have wholeheartedly supported the Government of Pakistan in standing up to the Government of India and in giving a befitting answer to their bellicosity and uncalled for belligerence should be rewarded with stripping off of their Fundamental Rights guaranteed by the Constitution.
7. Detailed submissions on behalf of the respondents including the Federation of Pakistan were filed on or about 9-7-1998, which were duly signed by the learned Attorney-General, a learned Deputy Attorney-General and the Advocate-on-Record, in which it has been averred that following the Proclamation of Emergency the President passed the order on 28-5-1998 in exercise of power conferred on him by clause (2) of Article 233 of the Constitution to declare that the right to move any Court including a High Court and the Supreme Court for the enforcement of Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and all the proceedings pending in any Court which are for the enforcement or involving the determination of any question as to the enforcement of any of the said rights, shall remain suspended for the period during which the said emergency is in force. It has further been averred that since the Constitution Petitions under reply have been filed under Article 184(3) of the Constitution involving enforcement of Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, the same are not maintainable and merit to be dismissed.
17. It has been pleaded that the petitions are also not maintainable because, the act of the President in proclaiming Emergency was in his sole power based on his own satisfaction which is not justiciable in a Court of law. It has also been averred that the Proclamation of Emergency as well as the order passed under Article 233(2) of the Constitution having been approved by the resolution of the joint sittings of the Parliament, now, expressed the will and satisfaction of the people of Pakistan. It has been further averred that the will of the people of Pakistan having been expressed in the resolution of the joint sittings of the Parliament, an individual or a citizen of Pakistan has no locus standi to call in question the Proclamation of Emergency and the orders suspending the Fundamental Rights.
18. It has also been pleaded that the ratio decidendi of the judgments of this Court in the case of Pir Sabir Shah (supra) and in the case of Mian Muhammad Nawaz Sharif (supra) relied upon by the petitioners are not attracted to the instant petitions for the reasons that the provisions of Chapter 1 of Part II of the Constitution relating to the Fundamental Rights and their enforcement were intact when the aforesaid two cases were decided, whereas the same are no longer enforceable and, secondly, no parallel can be drawn between a situation which was subject-matter of an action under erstwhile Article 58(2)(b) with the circumstances contemplated by Articles 232 and 233 of the Constitution. Reliance has been placed on the judgments of the Privy Council reported as Bhagat Singh v. Emperor AIR 1931 PC 111 and Emperor v. Benoari Lal Sharma and others AIR 1945 PC 48. Reference has also been made to the legislative history of the Emergency Law and the case-law developed thereon.
8. As regards the merits of the imposition of Emergency and the suspension of enforcement of the Fundamental Rights, the following averments have been made:-
19. "As to Part IV. Although, according to the plethora of judgments hereinbefore cited, the Proclamation of Emergency and the subsequent Order for suspending the enforcement of Fundamental Rights cannot be called in question or are not open to judicial review, yet, it may be submitted that the situation emerging from sudden unexpected nuclear explosions by India on 11-5-1998 and 13-5-1998 sent ominous waves of shock across the world obviously causing grave concern to the security of Pakistan. Following the Nuclear Explosions, the belligerent and hostile statements made by the Prime Minister and the Home Minister of India to 'deal firmly and strongly with Pakistan' disclosed the Indian hostile intentions and her hegemonistic policies against Pakistan of course now backed by overt Nuclear weaponisation. Warnings over the Kashmir dispute started pouring in, such as Advani's statement asking Islamabad 'to realise change in Geo-strategic situation'. To meet the need for an immediate executive action both in the decision of carrying out our own Nuclear Tests and to deal with the ensuing Emergent situation, it was necessary to Proclaim Emergency in Pakistan; The National and International Media was overflowing with day to day developments resulting from the Indian Nuclear Explosions. Definite Information, about the probability of attacks on our Nuclear Installations, by India and others, was received, between the night of the 27th May, 1998 and 28th May, 1998, that an attack was to be mounted before dawn. The Indian High Commissioner was summoned to the Foreign Office at 0.100 hours and clearly asked to desist from any such action. Naturally, such a situation warranted a swift and prompt action. The destruction of the Iraqi Nuclear sites could not have been far from the mind of the Executive. It may also be recalled that the Armed Forces of Pakistan were on red-alert in preparation and in protection of the Nuclear sites and territorial frontiers of Pakistan. Internally also, the situation was made very precarious in the wake of systematic large-scale terrorism launched by the Research and Analysis Wing (RAW) of the Indian Intelligence. The external sector of the economy was one of the most vulnerable sectors on the eve of 28-5-1998. There was an apprehension of International Monetary Sanctions. With inflow of foreign exchange resources expected to be sharply reduced, it was necessary that measures be taken to control its outflow. Priority development projects had to be protected to ensure economic growth and progress, Emergency was also necessary to take other necessary measures to protect the country from the threats to the security of Pakistan from external aggression and internal insecurities.
20. It is not required to dilate upon the material /reasons, which satisfied the President for issuing the Proclamation of Emergency and the consequent Order under Article 233(2) of the Constitution, but, the above facts have been mentioned with a view to portray the factual position, as-regards the external /internal threats which necessitated the taking of the aforementioned actions under Articles 232 and 233 of the Constitution Information/material, which is available with the respondents, is not being annexed to the present reply in the larger national interest, but, the same can be produced for the perusal/consideration of the Honourable Court, if and when so required."
9. To the above reply rejoinders have been filed by the petitioners in Constitution Petitions Nos. 10, 12, 16 and 17 of 1998. It is denied that the petitions are not maintainable. It has been averred that by now in Pakistan it is a well-settled principle of law that notwithstanding any ouster clause in the Constitution or in any other statute the Courts do have jurisdiction to undertake judicial review in the case of a Proclamation which is without jurisdiction or coram non judice or mala fide. It has been further pleaded that the mere fact that the Proclamation has been approved by the resolutions of the joint sittings of the Parliament, cannot render it immune from judicial review. It has been reiterated that the 'President's satisfaction' in this matter cannot be subjective, but is dependent on the existence of specified pre-conditions, which may validly attract judicial review.
10. As regards the averments as to the merits in the detailed reply of the respondent, it has been averred that the respondents have brought on record nothing which could at all justify the issuance of Proclamation of Emergency nor the wholesale suspension of Fundamental Rights on the evening of 28th May, 1998 i.e. several hours after the nuclear explosions successfully conducted by Pakistani Scientists at Chaghi (Balochistan).
21. It has also been averred that Proclamation of 28-5-1998 on the very face of it shows how casually, illegally and unconstitutionally the same was drafted and the way it was signed without proper application of mind by the President. It has been further averred that the tension between India and Pakistan is a permanent feature and thus it cannot be made basis for depriving the people of Pakistan of their Constitutional rights without rhyme or reason.
22. It has also been pleaded that this Court as well as the Courts in other countries have held that the satisfaction of the President is to be based on material/existence of conditions which should have direct nexus with the purposes of the Proclamation. ???????? ?
23. "In the rejoinder filed in Constitution Petition No. 17 of 1998, inter alia it has been averred that there is consensus of international juristic opinion that a public Emergency threatening the life of a nation should meet the following tests:-
(a) ??????? It must be actual or at least imminent
(b) ??????? Its effects must involve the whole nation
(c) ??????? The continuance of the organized life of the community must be threatened.
(d) ??????? The crisis or danger must be exceptional, in that the normal measures or restrictions of public safety, health or order are found to be clearly inadequate.
24. It has been averred that the above tests applied to the situation as obtaining on 28-5-1998 after the nuclear tests, there would be no justification whatsoever for the Proclamation of Emergency. It has further been averred that the exercise of power is subject to judicial review and scrutiny and that it is not enough merely just to claim that there were conditions of emergency in existence. It has been also averred that the respondents are rather under an obligation to show the real extent of the exceptional/imminent threat by submission of adequate material on record that would make it plausible applying the tests of prudence and reasonableness that Proclamation of Emergency and suspension of Fundamental Rights were justified.
25. It has further been averred that the position of the Government after the nuclear tests on 28-5-1998 was that any threat of external aggression to Pakistan or Azad Kashmir has been averted and the balance of power in South Asia has been restored which belied the averments contained in the respondents' reply that there was threat of war or external aggression. It has also been denied that the situation initially was also precarious due to systematic large-scale terrorism launched by Research and Analysis Wing of the Indian Intelligence.
26. ?
27. ??? 11. ??? The parties have placed a number of documents including press clippings from the national and international press. Besides that, the learned Attorney-General, Ch.Muhammad Farooq who appeared on Court notice as well as for the Federation, and Mr. S. Sharifuddin Pirzada, learned Senior Advocate Supreme Court who also appeared for the Federation, had shown us in Chambers certain privileged material.
12. The arguments were concluded on 28-7-1998 and the aforementioned Constitutional Petitions were disposed of on the same day by the following short order:-
28. "For the reasons to be recorded later on, we unanimously hold as under:-
(1) ??????? That the petitions are maintainable.
(2) ??????? That the materials placed before this Court and shown to us in the Chambers, prima facie indicate that the President was justified in issuing the Proclamation under clause (1) of Article 232 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution).
(3) ??????? That keeping in view the effect of the Proclamation provided for in clause (1) of Article 233 of the Constitution, which authorises the State E to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution and also keeping in view the language of Articles 10, 23 and 25 (which are hedged with qualifications), we are of the view that an order under clause (2) of Article 233 of the Constitution for suspending the enforcement of the Fundamental Rights was not justified and, therefore, the original order dated 28-5-1998 and the order dated 13-7-1998 varying the above earlier order are declared as without lawful authority and of no legal effect.
(4) ??????? That this Court has jurisdiction to review/re-examine the continuation of Emergency at any subsequent stage, if the circumstances so warrant."
13. In support of the four petitions Messrs Shahzad Jehangir, Muhammad Ikram Chaudhry, Syed Shabbar Raza Rizvi and Hamid Khan have appeared. Whereas the respondent Federation was originally represented by the learned Attorney-General, Ch. Muhammad Farooq, who was issued Court notice, was joined at a later stage by Mr. S. Sharifuddin Pirzada, learned Senior Advocate Supreme Court. Messrs Malik Sikandar Khan, M.Sardar Khan, Ashtar Ausaf Ali and M. lqbal Radd, learned Advocates-General for Balochistan, N.-W.F.P., Punjab and Sindh respectively appeared on Court notice.
29. Pakistan Bar Council and Supreme Court Bar Association were also represented in response to the Court notice, the former by a panel of lawyers comprising Mr. M. Yousaf Leghari (who argued the case), and M/s. A. Haleem Pirzada and Muhammad Bilal. Whereas the latter was represented by its President, Mr. Abid Hassan Minto, Senior Advocate Supreme Court.
30. 14(a). In support of the above petitions inter alia the following submissions were made by the learned -counsel for the petitioners:-
(i) ???????? That this Court has already held in the case of Pir Sabir Shah reported in PLD 1994 SC 738 that it has jurisdiction in respect of a Proclamation issued under clause (1) of Article 234 of the Constitution by the President in spite of the bar contained in clause (2) of Article 236 which provides that the validity of any Proclamation issued or order made under this Part (i.e. Part X of the Constitution) shall not be called in question in any Court, the above petitions are competent as the impugned Proclamation under Article 232(1) of the Constitution and the order under Article 233(2) thereof, have been passed under the above provisions which are also contained in above Part X of the Constitution and the bar provided under clause (2) of Article 236 of the Constitution is applicable to all proclamations and, hence the ratio decidendi of Sabir Shah's case (supra) is applicable.
(ii) ??????? That the factum that the joint session of the Parliament on 10-6-1998 had approved the above President's Proclamation of Emergency under clause (1) of Article 232 and the Order under clause (2) of Article 233 does not change the character of the above original Proclamation of Emergency and/or of the Order.
(iii) ?????? That, in any case, since the President's power to issue a Proclamation under clause (1) of Article 232 of the Constitution is dependent on the existence of preconditions contained therein, namely, existence of a grave emergency in which the security of Pakistan or any part thereof is threatened by war or external aggression or by internal disturbance beyond the power of Provincial Governments, in the absence of existence of any or more of the above pre-conditions, the impugned Proclamation is without jurisdiction and coram non judice and the exercise of power is malice in law and, hence, this Court has jurisdiction to examine the wires of the impugned Proclamation.
(iv) ?????? That factually after detonating nuclear devices by Pakistan in the afternoon of 28-5-1998 as per statements of the Prime Minister of Pakistan and some Ministers of his Cabinet, the threat, if any, to the security of Pakistan of war or external aggression was eliminated and, hence, there was no Constitutional justification to issue the impugned Proclamation on the evening of 28th May, 1998.
(v) ??????? That in order to invoke clause (1) of Article 232 of the Constitution, a grave emergency should exist in which the security of Pakistan or any part thereof is threatened by actual war or actual external aggression and not by an imminent danger of war or external aggression.
(vi) ? That it would be very dangerous proposition, particularly, in context of Indo-Pak relationship to lay down that the statements of politicians of both the countries can be made the basis for declaring Emergency, particularly, keeping in view that at the relevant time and now in India there was and is a coalition Government, which has been struggling for its survival.
(vii) That the reasons spelt out by the Prime Minister and some Ministers of the Cabinet inside and outside the Parliament for imposing the impugned Emergency have no nexus with the pre-conditions provided for in clause (1) of Article 232 of the Constitution and. hence, the same is without jurisdiction.
(viii) That no reasonable or prudent man could be satisfied on the basis of the material produced by the respondents that there existed a grave emergency on the evening of 28-5-1998, in which the security of Pakistan or any part thereof was threatened by war or external aggression or internal disturbance beyond the power or control of Provincial Governments keeping in view the various . tests laid down/prescribed by some International Jurist Organizations and, hence, the impugned Proclamation of Emergency is without jurisdiction.
(ix) ?????? That the mere fact that the President had to modify his earlier order under. clause (2) of Article 233 suspending the enforcement of all the Fundamental Rights by a subsequent order dated 13-7-1998 indicates that the President had not applied his mind and, hence, the exercise of the power stood vitiated.
(x) ??????? That there was no justification to pass any order under clause (2) of Article 233 as by virtue of clause (1) of Article 233 the State was authorised to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution and whereas Articles 10, 23 and 25 were hedged with qualifications.
(xi) ?????? That the past history of the imposition of Emergency in Pakistan indicates that once the Emergency was imposed it remained in force for long period and since the imposition of Emergency under clause (1) of Article 232 not only affects the autonomy of the Federating Units in view of sub-clauses (a), (b) and (c) of clause (2) of Article 232 but it also deprives the citizens of Pakistan of their Fundamental Rights besides denial of jurisdiction of superior Courts, the Court should construe the impugned Proclamation and the impugned order under clause (2) of Article 233 of the Constitution suspending the enforcement of the Fundamental Rights mentioned therein strictly in a manner which should preserve the scheme under the Constitution and should be in consonance with the other provisions thereof.
(xii) That in view of the precedents inter alia of the superior Courts of ? Pakistan to the effect that once the Emergency is imposed, the Court has no jurisdiction at any subsequent stage to examine, whether the continuation of the Emergency is warranted by the circumstances obtaining in the country, this Court should at this stage scrutinize the impugned Proclamation of Emergency strictly and declare the same as without lawful authority.
(b) (i) On the other hand, Ch. Muhammad Farooq, learned Attorney General, submitted as follows:-
(i) ???????? That the above petitions are not only barred by virtue of clause (2) of Article 236 of the Constitution but also on account of the fact that the enforcement of the relevant Fundamental Rights stood suspended and hence this Court has no jurisdiction to press into service clause (3) of Article 184 of the Constitution which relates to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution.
(ii) ??????? That the judgment in the case of Pir Sabir Shah (supra) has no application as-it related to the Proclamation issued by the President under clause (1) of Article 234 on account of failure of the Constitutional machinery in a Province and not a Proclamation of Emergency, under clause (1) of Article 233 on account of grave emergency in which the security of Pakistan or any part thereof is threatened by war or external aggression and that the leading opinion in the above report itself makes a distinction between the above two Proclamations under two different provisions of the Constitution.
(iii) ?????? That it has been consistently held by all the Courts in Indo-Pak that the ??????????? question, whether a grave emergency exists in which the security of the ? country or any part thereof is threatened by war or external aggression or by internal disturbance beyond the power or control of Provincial Governments, is a matter in which the satisfaction of the President is subjective and is not open to judicial review either at the stage of imposition of Emergency or at any subsequent stage.
(iv) ?????? That since the Parliament in its joint session accorded its approval to the above Proclamation of Emergency under clause (1) of Article 232 and Order under clause (2) of Article 233, the same are no longer the orders of the President as they stood merged in the resolution of the joint houses of the Parliament, the same cannot be questioned.
(v) ??????? That in the past the vires of a Proclamation of Emergency were agitated ? in individual cases by the persons who were aggrieved by some impugned orders/actions of the Government and that the same were not impugned through the petitions filed by the persons who were not aggrieved by any order or action passed/taken against them. In the instant case, admittedly none of the above petitioners is aggrieved by any order/action of the Government adversely affecting them or their interest, hence, they have no locus standi to agitate the vires of the above Proclamation.
(vi) ?????? That even otherwise on the basis of the material available on record of this Court and the documents shown to the Court in Chamber, the President was justified in issuing the impugned Proclamation under clause (1) of Article 23E of the Constitution.
(vii) That keeping in view the various definitions of the terms "war" and "external aggression" as propounded by International Conventions and Jurists, the same not only cover actual hostility or hostile act of a foreign country but they also cover threats and other actions which may imminently endanger the security of a country or a part thereof.
(viii) That the President has varied the original order dated 28-5-1998 passed under clause (2) of Article 233 by the aforesaid variation order dated 13-7-1998 and, therefore, it cannot be urged that the President had not applied his mind to the impugned order, which is in the field. The impugned order under the above provisions of the Constitution is in consonance with the provisions of the Constitution.
(ii) Mr.` S. Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing for the Federation, has contended as under:-
(i) ???????? That the above petitions are not maintainable and the ratio of the above judgment of this Court in the case of Pir Sabir Shah (supra) is not attracted.
(ii) ??????? That the overwhelming judicial view of Pakistani and foreign origin is that the matters of Emergency are not subject to judicial review and in such cases the Courts press into service judicial restraint and doctrine of one voice.
(iii) ?????? That in view of the U.N.Charter no country can now declare war or can indulge into external aggression and, therefore, the terms "war" and "external aggression" used in clause (1) of Article 232 of the Constitution are to be construed with reference to the meaning of the above terms as given by the International Conventions and United Nations Resolutions and various treatises.
(iv) ?????? That in section 102 of the Government of India Act there was no distinction between the actual war or actual external aggression and imminent danger thereof, but in order to remove doubt the same was brought out by the late Government of India (Amendment) Act, 1939 by incorporating subsection (5) and similarly originally in clause (3) of Article 352 of the Indian Constitution, a separate provision was provided for imminent danger of war and external aggression but the same was done away by the Indian Constitution (44th) Amendment Act, whereby above clause (3) was substituted by an Explanation. According to him, the above subsection (5) of section 102 of late Government of India Act, 1935, and aforesaid explanatory clause in Article 352 of the Indian Constitution reiterated what was already provided in subsection (1) of section 102 and clause (1) of Article 352 of the late Government of India Act and the Indian Constitution respectively.
(v) ??????? That no doubt clauses (1) and (7) of Article 191 of the late Constitution of 1956, -Article 30(1)(a) of late Constitution of 1962 and clauses (1) and (7) of Article 139 of the Interim Constitution of 1972 made a distinction between "war" and "external aggression" and "imminent danger of war" and "external aggression" but that was founded on the above explanatory subsection (5) of section 102 of the Government of India Act and clause (3) of Article 352 of the Indian Constitution which were in fact explanatory and hence the omission of the above distinction in the present Constitution of 1973 is of no consequence as clause (1) of Article 232 covers actual war or actual external aggression and imminent danger thereof.
(vi) ?????? That the impugned Proclamation of Emergency and the Order under clause (2) of Article 233 of the Constitution are in consonance with the provisions of the Constitution and, therefore, do not call for interference even otherwise.
31. However, Mr. S. Sharifuddin Pirzada has taken somewhat a different stand to that of the learned Attorney-General as to the power of this Court to review/re-examine the question of continuity of the Emergency at a subsequent stage if the conditions obtaining so warrant, on the basis of some treatises/case law of foreign origin. According to him the Court is vested with such a power.
(iii) The learned Advocates-General of Punjab, Sindh and N.-W.F.P. adopted the arguments of the learned Attorney-General and Mr. S. Sharifuddin Pirzada, learned Senior Advocate Supreme Court. However, Malik Sikandar Khan, learned Advocate-General Balochistan, adopted their arguments on the question of imposition of Emergency but submitted that the suspension of the enforcement of the Fundamental Rights was not warranted.
(C) In reply to the above submissions of the learned Attorney-General and Mr. S. Sharifuddin Pirzada, Mr. Muhammad Ikram Chaudhry reiterated that this Court should strictly construe the impugned Proclamation of Emergency as it not only deprives the citizens of the Fundamental Rights but it also curtails the jurisdiction of the Courts.
32. Mr. Hamid Khan urged that this country suffered on account of deviation from the Constitution by the Courts in 1956, 1962, 1981 etc. and, therefore, this Court should not extend the meanings of the words "war" and "external aggression" as to include imminent danger of war or external aggression. His further submission was that explosion of the nuclear device by Pakistan in fact had reduced the possibility of any war or external aggression.
33. Mr. M. Yousaf Leghari, learned counsel for Pakistan Bar Council, reiterated his submission that the imposition of Emergency and the suspension of the Fundamental Rights were mala fide and were not warranted by the situation obtaining in the country inasmuch as Pakistan Muslim League (Nawaz Group) had full control over the Federal and four Provincial Governments and there was neither war nor external aggression nor any internal disturbance of the nature warranting pressing into service above clause (2) of Article 232 of the Constitution.
34. Mr. Abid Hassan Minto, learned counsel and the President of the Supreme Court Bar Association, has pointed out that the judgment reported in AIR 1931 Privy Council p.111. was a judgment rendered by the Privy Council at the time when there was no war as incorrectly stated in the Sabir Shah case in my opinion, but factually a massive movement to liberate India was going on. His further submission was that the above Privy Council cases were to be viewed keeping in mind that then the Indian Courts had no jurisdiction of the nature which this Court now enjoys on account of the conferment of the Fundamental Rights on the citizens and the imposition of Constitutional duty on the Court to enforce the same. Secondly, the Privy Council's approach was somewhat different, oriented with the desire to perpetuate colonial rule.
35. He also submitted that it is not a universal rule of interpretation of constitution/statute that an explanation to a section of a statute is merely declaratory in nature. According to him the effect and nature of such an explanation is to be determined with reference to the contents and context of the relevant provision of the statute. He further urged that since the Framers of the Constitution of 1973 deliberately omitted the provision like clause (7) of Article 139 of the Interim Constitution of 1972 which covered imminent danger of war and external aggression, the terms "war" and "external aggression" employed in clause (1) of Article 232 of the Constitution cannot be construed as to include the same.
15. I may now revert to the question, whether the petitions are maintainable in view of the principles of law enunciated in the Sabir' Shah's case (supra). In this behalf, it will be advantageous to reproduce paras. 16 and 17 of my opinion in the above case, which read as follows:-
36. "
16. The above view was reiterated in the cases of Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra). In other words, it has been held by this Court that even if the impugned act or action has been protected by a Constitutional provision by ouster clause, the superior Courts still have the jurisdiction to interfere with in the above three categories of the cases namely, without jurisdiction, coram non judice and mala fide. In the case of Mian Muhammad Nawaz Sharif (supra), the impugned action was taken, dissolving the National Assembly and dismissing the Prime Minister and his Cabinet under Article 58(2)(b) of the Constitution, wherein the President has been empowered to dissolve the National Assembly in his discretion for the reasons contained in sub-clauses (a) and (b) of the above Article. It may further be pointed out that clause (2) of Article 48 of the Constitution provides that 'notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever.'
37. The above clause is more wide in its nature as an ouster clause as it begins with the words 'Notwithstanding anything contained in clause (1)' and ends by employing the words 'on any ground whatsoever'. In spite of the fact that the above clause was so widely framed, the majority view of 10 to 1 in the above case held that this Court had jurisdiction to proceed with the matter and to examine the vires of the impugned action. It seems that by now in Pakistan it is well-settled principle of law that notwithstanding an ouster clause in the Constitution or m any other statute, the Courts have jurisdiction in the above three categories of cases.
17. In the present case, the proclamation has been issued under Article 234, it has not been protected by any Article like Articles 281 and 270-A, which were the subject-matter of the above judgments in the cases of Zia-ur-Rehman, Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra) but the protection is sought under clause (2) of Article 236 of the Constitution, which is of general nature purporting to protect all proclamations issued under Part X of the Constitution. I am, therefore, of the view that clause (2) of Article 236 will not cover a proclamations which is without jurisdiction, coram non judice or mala fide and the superior Courts will have jurisdiction to examine a proclamation from the above three jurisdictional legal aspects."
38. A perusal of the above-quoted extract from the above judgment indicates that after referring to the case-law, it has been held that clause (2) of Article 236 (which debars the jurisdiction of the Courts from examining the validity of any Proclamation) will not cover a Proclamation which is without jurisdiction, coram non judice or mala fide. However, Ch. Muhammad Farooq, learned Attorney-General, and Mr. S. Sharifuddin Pirzada, contended that the ratio of the above case is not attracted to the present case for the reason that Sabir Shah case (supra) related to a Proclamation under Article 234 of the Constitution which covers the case of failure of Constitutional machinery in a Province and not a Proclamation under clause (1) of Article 233 for imposition of Emergency. According to them the above distinction has even been highlighted by me in para.59 of my opinion in the above report. It may be advantageous to reproduce the same which reads as under:-
39. "59. It was also urged by Mr. Sharifuddin Pirzada that Emergency Provisions necessitate taking of immediate action by the President, and, therefore, he is the sole judge to decide the question, whether a Proclamation is to be issued or not. In support of his submission he has referred to the case Bhagat Singh v. Emperor (Viscount Dunedin) AIR 1931 PC p. l l l and the case of Emperor v. Benoari Lal AIR 1945 PC p.48.
40. The above reports do support Mr. Sharifuddin Pirzada's above submission. However, in this report, it may be pertinent to point out that though Article 234 of the Constitution is contained in Part X of the Constitution, which relates to the Emergency Provisions, but it cannot be equated with Article 232 which can be invoked when the President is satisfied that a grave emergency exists in which the security of the country or part thereof is threatened by war or external aggression or by internal disturbances beyond the powers of the Provincial Government to control. The invocation of the above Article even entails suspension of the Fundamental Rights under Article 233. Whereas, in order to press into service Article 234, it is not necessary that there should exist a grave emergency of the nature referred to in Article 232 but the same can be invoked in aid if there is temporary Constitutional deadlock. The above two Privy Council cases relate to emergency action during the war period and, therefore, are distinguishable. "
16. No doubt in the above-quoted para. I have observed that though Article 234 of the Constitution is contained in Part X of the Constitution, which relates to the Emergency provisions, but it cannot be equated with Article 232 which can be invoked when the President is satisfied that a grave emergency exists in which the security of the country 'or a part thereof is threatened by war or external aggression or by internal disturbance beyond the power of the Provincial Governments to control. The above observation is to be viewed with reference to the context in which it has been made. Since Article 232 and Article 234 cover different subjects, they cannot be equated, inasmuch as that under Article 234 of the Constitution a Constitutional Provincial Government is at stake, whereas under Article 232 thereof the existence of the nation itself is at stake as pointed out by Basu in relation to the corresponding Articles 356 and 352 of the Indian Constitution. However, as far as the bar of jurisdiction of the p Courts provided under clause (2) of Article 236 is concerned, it is the same for both the above Proclamations covered by the aforesaid two Articles inasmuch as above clause (2) provides that "the validity of any Proclamation issued or order made under this Part shall not be called in question in any Court". Admittedly Articles 232 and 234 are contained in Part X of the Constitution as pointed out by me in above-quoted para.59 of my opinion in Sabir Shah case. The parity of reasoning given in my above-quoted paras. 16 and 17 of my above opinion is very much attracted to and is applicable to the case in hand.
41. Then it was urged by Ch. Muhammad Farooq, learned Attorney General, that there is a significant distinction between the above two Articles inasmuch as once a Proclamation of Emergency is issued under clause (1) of Article 232 of the Constitution and an order under clause (2) of Article 233 thereof is passed for suspending the enforcement of Fundamental Rights mentioned therein, this Court cannot enforce any Fundamental Right and hence, it cannot entertain a petition under Article 184(3) of the Constitution, whereas there is no such suspension of the enforcement of Fundamental Rights in a case of issuance of a Proclamation under Article 234 of the Constitution. Indeed the above distinction exists. However, it may be pointed out that the suspension of the jurisdiction of this Court to enforce any one or more Fundamental Rights mentioned in an order passed by the President under clause (2) of Article 233 depends on the questions, as to whether the preconditions provided for in clause (1) of Article 232 were present at the time of the issuance of the Proclamation, and, whether the suspension of enforcement of anyone or more Fundamental Rights was warranted in terms of the Constitutional framework. In other words, the exercise of power by the President under clause (1) of Article 232 is conditional and can be invoked if the conditions/prerequisites contained therein are present. If the said conditions do not exist, the exercise of power by the President under the above clause will be without jurisdiction and coram non judice. For example, if we were to hold that the expression "the security of Pakistan, or any part thereof is threatened by war or external aggression" used in clause (1) of Article 232 means actual war or actual external aggression, the exercise of power under the above clause would be without jurisdiction if factually no actual war or actual external aggression existed at the time of issuance of the Proclamation under the above provision; or if we were to hold that the reasons which prompted the issuance of Proclamation under aforesaid clause (1) of Article 232 have no nexus with the objects contained therein, such exercise of power by the President will also be without jurisdiction and coram non judice.
42. In this regard, it may be pertinent to quote Dr. Nasim Hasan Shah, C.J.'s and Shafiur Rahman, J.'s observations made by them in their opinions in Mian Muhammad Nawaz Sharif's case (supra) and Saiduzzaman Siddiqui, J.'s observations in Pii Sabir Shah's case (supra), which read as follows:-
43. Extract from the opinion of Dr. Nasim Hasan Shah. C.J.:
44. "This Court, in Haji Muhammad Saifullah's case PLD 1989 SC 166 after a close analysis of this provision, in the light of the relevant background, held that if it could be shown that no grounds existed on the basis of which an honest opinion could be formed 'that a situation had arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary' the exercise of the power would be unconstitutional and open to correction through judicial review. As the examination of the grounds of the order of dissolution passed by the President on 29th May, 1988 revealed that the prerequisites prescribed for the exercise of the powers conferred by Article 58(2)(b) did not exist, the said action was found to be unlawful. "
45. Extract from the opinion of Shafiur Rahman J.:
46. "The word 'transparency' in administration or privatization is a word very pleasing to the ear and very impressive to find established in a society. Where freedom to obtain information does not exist, where secrecy of all financial transactions including the declaration of assets by the public office-holder is the order of the day to expect transparency and make it a ground for taking action under Article 58(2)(b) of the Constitution would be far-fetched, a matter of degree and quite unjustified. It is a vague criteria, not referable to any statutory provision and will make, the satisfaction of. the empowered authority subjective and not objective. This Court has already held that the requirements of Article 58(2)fb) of the Constitution are ill objective and relatable to the various Constitutional provisions. (The underlining is my own).
47. Extract from the opinion of Saiduzzaman Siddiaui:
48. "In view of the above, discussed legal position, I am of the view that the satisfaction of the President under Article 234 ibid with regard to the existence of a situation in which the Government of the Province cannot be run in accordance with the provisions of the Constitution cannot be treated subjective. The satisfaction of the President in this regard must be based on existence of objective conditions justifying issue of Proclamation under Article 234 ibid. However, the Court while examining the material used by the President in forming his satisfaction as to the existence of conditions mentioned in Article 234 ibid cannot sit as a Court of Appeal and inquire into sufficiency or otherwise of the material. If the Court finds that the material used by the President in arriving at his satisfaction bears nexus to the objects of Article 234 ibid it cannot interfere with the Proclamation on the ground that there was not sufficient material before the President to express his satisfaction with regard to the existence of conditions which would justify issuance of Proclamation under Article 234 ibid."
49. Reference may also be made to para. 15 of my opinion in a recent case of the Constitutional Fourteenth Amendment (titled Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan etc.) decided on 18th May, 1998 reported in PLD 1998 SC 1263, in which I have touched upon the question of bar or ouster of jurisdiction of the Court as under:-
50. "
15. Dr. A. Basit, learned counsel, has particularly referred to clause (6) of the impugned Article, which provides that 'Notwithstanding anything contained in the Constitution, no Court including the Supreme Court and a High Court shall entertain any legal proceedings, exercise any jurisdiction, or make any order in relation to any action under this Article' and submitted that the same is hit by the doctrine of basic structure as in most of the above Indian Supreme Court cases the exclusion of the jurisdiction of the High Courts and the Supreme Court was treated as a breach of the basic structure of the Constitution. It will suffice to observe that it has been consistently held by this Court that the question, as to whether a superior Court has jurisdiction in a particular matter or not, is to be decided by the Court itself. No provision of whatsoever amplitude can take away the jurisdiction of the superior Courts to examine the above question as laid down inter alia by the dictum in the case of State v. Zia-ur-Rehman (supra). Furthermore the simpliciter factum that a particular provision of the Constitution contains a non obstante clause will not itself be sufficient to deny the jurisdiction of the superior Courts if the impugned action/order is without jurisdiction, coram non judice or mala fide. In this behalf reference may be made to the case of Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26) in which the scope of Article 270-A of the Constitution which contained a non obstente clause and which was couched in the broadest possible wordings was in issue. It was held that the Court had the jurisdiction to interfere with the acts performed without jurisdiction, coram non judice and mala fide. In our view, the above clause (6) of Article 63A does not debar a High Court or this Court from examining an order passed under the above Article in terms of the aforesaid judgment. "
17. It seems that by now it is a well-entrenched proposition of law that notwithstanding the ouster of jurisdiction of the Court and the fact that the formation of opinion in terms of the relevant provision of the Constitution or of a statute is to be based on the satisfaction of a State functionary mentioned therein, the Court has the jurisdiction to examine whether the prerequisites provided for in the relevant provision of the Constitution/statute for the exercise of the power thereunder existed, when the impugned order was passed. If the answer of the above question is in the negative, the exercise of power will be without jurisdiction calling for interference by the Court.
51. 18 Besides, the question of maintainability of the above Constitution Petitions, the basic issues which have emerged from the elaborate and able arguments of the learned Attorney-General and the learned counsel for the parties are:
(i) ???????? Whether in order to invoke clause (1) of Article 232 of the Constitution, the security of Pakistan or any part thereof should be threatened by actual war or by actual external aggression or by imminent danger thereof.
(ii) ??????? Whether the pre-conditions provided for in clause (1) of Article 232 for invoking the same were present on 28-5-1998 when the President issued the impugned Proclamation of Emergency;
(iii) ?????? Whether keeping in view the various provisions of the Constitution and the situation obtaining after detonating nuclear device by Pakistan, any order by the President under clause (2) of Article 233 of the Constitution was warranted; and
(iv) ?????? Whether this Court at a subsequent stage can review the continuation of Emergency.
19. At this juncture, it will be pertinent to reproduce Articles 232 and 233 of the Constitution, which read as under:
52. "232. (1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency.
(2) ??????? Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force,--
(a) ??????? Majlis-e-Shoora (Parliament) shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List;
(b) ??????? The executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised; and
(c) ??????? The Federal Government may by Order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear, to the federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to any body or authority in the Province:
53. Provided that nothing in Paragraph (c) shall authorise the Federal Government to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.
(3) ??????? The power of Majlis-e-Shoora (Parliament) to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties upon the Federation, or officers and authorities of the Federation, as respects that matter.
(4) ??????? Nothing in this Article shall restrict the power of a Provincial Assembly to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) has under this Article power to make, the Act of Majlis-eShoora (Parliament) whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy but so long only as the Act of Majlis-e-Shoora (Parliament) continues to have effect, be void.
(5) ??????? A law made by Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) would not but for the issue of a Proclamation of Emergency have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.
(6) ??????? While a Proclamation of Emergency is in force, Majlis-e-Shoora (Parliament) may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months after the Proclamation has ceased to be in force.
(7) ??????? A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and-
(a) shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting; and
(b) shall, subject to the provisions of paragraph (a), cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total membership of the two Houses in joint sitting.
(8) ??????? Notwithstanding anything contained in clause (7), if the National assembly stands dissolved at the time when a Proclamation of Emergency is issued, the Proclamation shall continue in force for a period of four months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate.
54. 233.--(1) Nothing contained in Articles 15, 16, 17, 18, 19 and 24 shall, while a Proclamation of Emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles, be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force.
(2) ??????? While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such order may be made in respect of the whole or any part of Pakistan.
(3) ??????? Every Order made under this Article shall, as soon as may be, be laid before a joint sitting for approval and the provisions of clauses (7) and (8) of Article 232 shall apply to such an Order as they apply to a Proclamation of Emergency."
55. For the time being, it will suffice to deal with clause (1) of Article 232 of the Constitution. A perusal of the same indicates that the President has been empowered if he is satisfied that:-
(i) ???????? a grave emergency exists;
(ii) ??????? in which the security of Pakistan or any part thereof is threatened by war or external aggression; or
56. ? (iii) ????? by internal disturbance beyond the power of a Provincial Government
57. ??????????? to control;
58. ?????????? he may issue a Proclamation of Emergency
59. It was vehemently urged by Mr. Abid Hasan Minto, learned Senior Advocate Supreme Court and the President of the Supreme Court Bar Association, who appeared as amicus curiae, that the words used are "the security of Pakistan or any part thereof is threatened by war or external aggression" which according to him connote that there should be actual. war or actual external aggression and not merely an imminent danger thereof. To reinforce the above submission he has submitted that in order to ascertain the intention of the Constitution-makers, we may refer to the late Constitutions of Pakistan which also contained similar Articles besides referring Article 352 of the Indian Constitution. In this behalf he has referred to clauses (1) and (7) of Article 191 of the late Constitution of Pakistan, 1956; Article 30(1)(a) of late Constitution of Pakistan, 1962; clauses (1) and (7) of Article 139 of the late Interim Constitution of Pakistan, 1972; and clauses (1) and (3) of Article 352 of the Indian Constitution. These provisions read as under:-
60. Clauses (1) and (7) of Article 191 of late Constitution of 1956:
61. "191.--(1) If the President is satisfied that a grave emergency exists in which the security or economic life of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency in this Article referred to as a Proclamation.
62. (2)????????.
63. (3)????????..
64. (4)?????????.
65. (5)????????
66. (6)????????
7. ? A proclamation declaring that the security of Pakistan or any part thereof is threatened by war or external aggression may be made before the actual occurrence of war or any such aggression if the President is satisfied that there is imminent danger thereof."
67. Article 30(1)(a) of late Constitution of 1962:
68. "30.--(1) If the President is satisfied that a grave emergency exists---
(a) ??????? in which Pakistan, or any part of Pakistan, is (or is in imminent danger of being) threatened by war or external aggression; or"
69. Clauses (1) and (7) of Article 139 of Interim Constitution of 1972:
70. "139.--(1) Notwithstanding anything in the last two preceding Articles, the Federal Legislature shall, if the President has declared by Proclamation (in this Constitution referred to as a 'Proclamation of emergency') that a grave emergency exists whereby the security or economic life of Pakistan or any part thereof is threatened by war or internal disturbance or circumstances arising out of any mass movement of population from or into Pakistan, have power. to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List, or to make laws, whether or not for a Province or any part thereof, with respect to any matter not enumerated in any of the Lists in the Fourth Schedule or to make laws, notwithstanding anything in any other provision of this Constitution, relating to the custody, management and disposal of the property of any person concerned in any mass movement as aforesaid:
71. Provided that no bill or amendment for the purposes aforesaid shall be introduced or moved without the previous sanction of the President, and the President shall not give his sanction unless it appears to him that the provision proposed to be made is a proper provision in view of the nature of the emergency."
72. Clauses (1) and (3) of Article 352 of the Indian Constitution:
73. "352.--(1) If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.
74. (2)?????????????.
(3) ??????? A Proclamation of Emergency declaring that the security of the India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be. made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof."
75. It will not be out of context to point out that Mr.S. Sharifuddin Pirzada has invited our attention to the factum that above clause (3) of Article 352 of the Indian Constitution was substituted by an Explanation to clause (1) thereof by the Constitution (Forty-Fourth Amendment Act, 1978 with effect from 20-6-1979. The aforesaid Explanation reads as under:-
76. "Explanation.--A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof."
77. A perusal of the abovequoted provisions of the late Constitutions of Pakistan indicates that there were separate provisions dealing with a grave emergency in which the security of Pakistan or any part thereof was threatened by war or by external aggression on the one hand and where the same was threatened by an imminent danger thereof on the other. The above distinction was also kept in the original Article 352 of the Indian Constitution. This distinction has been done away in the present Constitution of Pakistan. According to Mr. Abid Hassan Minto the above omission on the part of the Constitution-makers was a deliberate act intended and designed not to provide for imposition of Emergency in case of imminent danger of war or external aggression. He also submitted that the Constitution being essentially in the nature of a statute, the general rules governing the construction of statutes apply to the construction of the Constitution also and thus reference to the corresponding provisions in the late Constitutions of Pakistan is in accord with the above well-established principle of construction of Constitutional documents. In support thereof, he has referred to para. 4 from Bindra on Interpretation of Statutes, Seventh Edition, page 939; a para. under the caption "Previous legislation" from Basu's Commentary on the Constitution of India, Sixth Edition, Vol. A, Silver Jubilee Edition, page 82; the case of Bengal Immunity Co. Ltd. v. The State of Bihar and others (AIR 1955 SC 661), the case of Dr. S.C. Barat and another v. Hari Vinayak Pataskar and others (AIR 1962 Madhya Pradesh 73) and the case of Henrietta Muir Edwards and others v. Attorney General of Canada and others (AIR 1930 Privy Council 120).
78. It may be advantageous to reproduce the aforesaid relevant extracts from the aforementioned treatises, which read as under:-
79. Extract from Bindra on Interpretation of Statutes;
80. "4. Applicability of rules of statutory construction --The Constitution being essentially in the nature of a statute, the general rules governing the construction of statutes in the main apply to the constructions of Constitutions also. The fundamental rule of interpretation is, the same whether it is the provisions of the Constitution or an Act of parliament, namely, that the Court will have to ascertain the intention gathered from the words in the Constitution or the Act as the case may be. And where two constructions are possible that one should be adopted which would ensure .a smooth and harmonious working of the Constitution and eschew that which would lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory. "
81. Extract from Basu's Commentary on the Constitution of India:
82. "Previous legislation. --Constitutions do not, in general, arise without some pre-existing legal or Constitutional foundation which must necessarily affect the framers in their creation. Hence, a reference to the pre-existing system is permissible when a term is ambiguous but was used in the pre-existing law.
83. Previous Constitutional Instruments:
84. Thus in determining whether the word 'person' in the British North America Act included the female sex, the Judicial Committee referred to previous statutes of Parliament with these observations:
85. 'In coming to a determination of a particular word in a particular Act of Parliament, it is permissible to consider two points:--(i) The external evidence derived from the extraneous circumstances such as previous legislation and decided case. (ii) The internal evidence derived from the Act itself'.'
86. In the above first case, Das Acting C.J., who spoke for the majority while construing the provisions of Bihar Sales Tax Act, highlighted the sound rule of construction of statutes as under:-
87. "It is a sound rule of construction of a statute firmly established in England as far back as 1584 when--'Heydon's case', (1584)3 Co Rep 7a(V) was decided that-
88. ?
89. ????..for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
90. 1st. What was the common law before the making of the Act,
91. 2nd. What was the mischief and defect for which the common law did not provide,
92. 3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and
93. 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuation of the mischief, and 'pro privato commodo', and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, 'pro bono rublico'."
94. In'In re, Mayfair Property Co., (1898)2 Ch.28 at p.35 (W) Lindley M.R. in 1898 found the rule "as necessary now as it was when Lord Coke reported 'Heydon's case (V)'.
95. In-'Eastman Photographic Material Co. v. Comptroller General of Patents, Designs and Trade Marks', 1898 AC 571 at p.571 (X) Earl of Halsbury re-affirmed the rule as follows:
96. "My Lords, it appears to me that to construe the Statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy. These three being compared 1 cannot doubt the conclusion."
97. It appears to us that this rule is equally applicable to the construction of Article 286 of our Constitution. In order to properly interpret the provisions of that Article it is, therefore, necessary to consider how the matter stood immediately before the Constitution came into force, what the mischief was for which the old law did not provide and the remedy which has been provided by the Constitution to cure that mischief."
98. Whereas Bhagwati, J. in his separate note dilated upon the effect of an Explanation to clause (1) of Article 286 of the Indian Constitution. The above Explanation of the aforesaid Article reads as under:-
99. "Explanation.--For the purpose of sub-clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. "
100. Whereas Bhagwati, J.'s comments thereon are as follows:--
101. "I cannot imagine that our Constitution-makers intended to produce this anomalous result. On the contrary, it appears to me that they enacted clauses (1)(a) and (2) for the very purpose of preventing this anomaly. I repeat that it is not permissible, on principle or on authority, to extend the fiction of the Explanation beyond its immediate and avowed purpose which I have explained above. In my judgment until Parliament otherwise provides, all sales or purchases which take place in the course of inter-State trade or commerce are by clause (2) of Article 286, made immune from taxation by the law o'' any State, irrespective of the place where the sales or purchases may take place, either under the general law or by virtue of the fiction introduced by the Explanation to clause (1)(a)."
102. In the second case, a Division Bench of the Madhya Pradesh High Court, while construing Article 361(1) and (4) relating to personal immunity inter alia of the Governor and after referring inter alia the aforesaid Supreme Court judgment, made the following observation as to the rule applicable to the interpretation of a Constitutional provision:-
103. "The answer to the question raised by the preliminary objection turns solely on the true construction of Article 361. A consideration of that Article must be prefaced by the observation that the provision has to be construed in the same manner as the provision of any other statute by applying the cardinal rules of construction. The intention of the Constitution-makers must be ascertained from the language of the provision and its construction must be by reference to its terms and language and these alone.
104. A Constitutional provision has the greatest claim to be construed 'ut res magis valeat, quam pereat', and it is the duty of the Court to see that as far as possible the intention of the makers of the Constitution is effectuated to the fullest extent (see M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395 at p.410). To arrive at the real meaning of the provision it is also legitimate to consider how the law on the subject stood immediately before the Constitution and the defect which the old law contained and the remedy provided by the Constitution to remove that defect (see Bengal Immunity Co. Ltd. v. State of Bihar (S) AIR 1955 SC 661 at p.674)."
105. In the third case, the Privy Council, while construing section 24 of the British North America Act held that the word "persons" used therein did include women by pressing into service the following rule of interpretation of statutes:-
106. "Their Lordships are of opinion that the word 'persons' in section 24 does include women and that women are eligible to be summoned to and become members of the Senate of Canada.
107. In coming to a determination as to the meaning of a particular word in a particular Act of Parliament it is permissible to consider two points, viz. (i) The external evidence derived from extraneous circumstances such as previous legislation and decided cases, (ii) internal evidence derived from the Act itself. "
108. From the above-cited treatise and case-law, it is evident that as a rule of construction of a Constitutional provision or of a statute, it is permissible to refer to the legislative history when a term is ambiguous but was used in the previous existing law in order to ascertain the real intent of the law-makers. However, the point at issue is, as to whether the above principle of construction of statutes is to be pressed into service in the case in hand or should some other principle of interpretation of statutes be applied to.
109. Mr. S. Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing for the Federation, has contended that the above omission in the present Constitution, namely, not to provide separately for imminent danger of war or external aggression is of no consequence. According to him, the above separate provision in the Indian Constitution and in our late Constitutions was founded on subsection (3) of the Government of India (Amendment) Act, 1939 dated 1-9-1939, which provided as follows:-
110. "(3) At the end of section one hundred and two of the said Act, there shall, for the avoidance of doubt, be inserted the following subsection-
(5) A Proclamation of Emergency declaring that the security of India is threatened by war or by internal disturbance may be made before the actual occurrence of war or of any such disturbance if the Governor General in his discretion is satisfied that there is imminent danger thereof. "
111. According to him, the above incorporation of subsection (5) in section 102 of the Government of India Act, 1935, hereinafter referred to as the Act, which provided for the imposition of Emergency was for the avoidance of doubt, meaning thereby, that original clause (1) of section 102 of the Act covered both actual war and imminent danger of war. To reinforce the above contention he has further submitted that though originally in India there was a separate clause, namely, clause (3) in Article 352 providing for imminent danger of war or external aggression or internal disturbance but after having realised the above factual and legal position the Indian Parliament substituted aforesaid clause (3) of Article 352 by the above Explanation (already quoted hereinabove in para. 19). According to him, an Explanation in a statute is merely declaratory in nature. In support of his above submission, he has referred to the case of Messrs Dreandand Cinema, Multan v. Commissioner of Income-tax, Lahore PLD 1977 Lahore 292 and the case of Commissioner of Wealth Tax v. Suresh Mohan Thakur 1995 PTD 1027).
112. In the above first case, a Division Bench of the Lahore High Court, while construing Explanation No.2 which was incorporated by Finance Act, 1967 to section 24 of the Income-tax Act, 1922, after referring the case-law, held as follows as to the legal effect of an Explanation:--
113. "The note of caution struck in the portion underlined can hardly be disputed. Undoubtedly we have to find out the intent of the Legislature and should not be swayed merely by the use of word 'declaratory' or otherwise. If, therefore, the object of the statute is to explain the previous provisions or to remove a doubt, the law would apply retrospectively, as held in other judgments referred to before."
114. Whereas in the second case, a Division Bench of the Patna High Court while construing the provisions of section 27 of the Wealth Tax Act, 1957, read with Explanation No. 1, which was inserted with effect from 1-4-1972 by the Finance Act 1971 held as under as to the effect of the above Explanation:
115. "Obviously, therefore, if without reference to Explanation 1, it could be held that 'jewellery' includes not only ornaments studded with gems, precious stones, etc., but also includes ornaments made of gold, silver, platinum, or any other precious metal, the subsequent insertion of Explanation 1 must be understood to be by way, of abundant caution. If, on the other hand, it is held that 'jewellery' cannot be understood to include ornaments made of gold, silver, platinum and other precious metals, without gems or precious stones studded or embedded in them, Explanation 1 must be understood as an inclusive definition giving an extended meaning to 'jewellery' so as to include that, which, but for the inclusive definition, could not he considered to be 'jewellery'. In my view, therefore, the fact that the amendment to section 5(1 )(viii) was effected retrospectively, while Explanation 1 was added prospectively, cannot be of much significance in interpreting the word 'jewellery' in section 5(1)(viii) of the Act, as it stood in the years of assessment in question. It cannot be lost sight of that the Explanation only functions to explain the meaning and effect of the main provision to which it is an Explanation, and to clear up any doubt or ambiguity in it."
116. It appears that an explanation is generally appended to a provision of a statute in order to explain the scope of it, and therefore, it is declaratory in nature, but this is not a rule of universal application. An explanation some time is used for other purposes, for example in the case of Bengal Immunity & Co. Ltd. v. The State of Bihar (supra), Bhagwati, J. while construing Explanation to Article 286 of the Indian Constitution pointed out that the fiction of the above explanation cannot be extended beyond its immediate and avowed purpose. It may be stated that the object of the above Explanation was to provide by fiction of law that a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a result of such sale or purchase for the purpose of consumption, in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State.
117. Mr. S.Sharifuddin Pirzada's further submission was that, in any case, the Constitution is an organic document. It should be construed liberally and progressively as to cater for the changing situation of the time and since under the new concept of war or aggression actual war or actual aggression and imminent danger thereof are covered and thus this Court cannot restrict the meaning of the words "war and external aggression" employed in clause (1) of Article 232 of the Constitution.
118. To reinforce his above submission he has referred to the following documents/treatises: -
(i) War, Aggression and Self-defence by Yoram Dinstein, Second Edition, in which the author has referred to war in the technical sense with reference to Article 1 of the Hague Convention (III of 1907) Relative to the Commencement of Hostilities as under:- "hostilities... must not commence without previous and explicit warning, in the form either of a declaration of war, giving reasons, or of an ultimatum with a conditional declaration of war."
119. The author while dealing with the definition of "aggression" as adopted by the General Assembly of the United Nations in 1974 has commented as under:-
120. . The General Assembly consensus Definition of Aggression, adopted in 1974, relates to 'aggression' in a generic way. The abvoementioned Article 5(2) differentiates between aggression (which 'gives rise to international responsibility') and war of aggression (which is 'a crime against international peace'). The drafters of the Definition thereby signalled clearly that not every act of aggression constitutes a crime against peace: only war of aggression does. An act of aggression may trigger war. However, this is not a foregone conclusion, since aggression may also take the form of an act short of war. When an aggressive act short of war is committed, although a violation of international law occurs, no crime against peace is perpetrated."
121. He also highlighted Article 3 of the above Resolution which enumerates the specific act of aggression regardless of a declaration of war which has been reproduced hereinbelow in sub-para. (ii).
122. The author after referring to 1954 Draft Code prepared by the International Law Commission defining war referred to its Draft Code of 1991 and quoted Article 16(2) thereof, which reads as under:-
123. "Article 16(2) of the 1991 Draft Code not only slates the threat of aggression as a crime, but defines it as follows:
124. Threat of aggression consists of declarations, communications, demonstrations of force or any other measure which would give good reason to the Government of a State to believe that aggression is being seriously contemplated against that State.
125. The use of the phrase 'seriously contemplated' appears to go even beyond actual threats. Indeed, the Commission's commentary adds:
126. As to its concrete manifestations, the threat of aggression could take the form of intimidation, troop concentrations or military manoeuvres near another State's borders, or mobilization for the purpose of exerting pressure on a State to make it yield to demands."
127. Then the author has dealt with, "Armed Attack and Preventive War" and observed as under:-
128. "Although the right of self-defence pursuant to the U.N. Charter has its origins in customary international law, there seems to be a material difference in the range of operation of the right arising from these two sources. Article 51 permits self-defence solely when an 'armed attack' occurs. While some commentators believe that customary international law does the same, the more common opinion is that the customary right of self-defence is also accorded to States as a preventive measure (taken in 'anticipation' of an armed attack, and not merely in response to an attack that has actually occurred). The International Court of Justice, in the Nicaragua case, based its decision on the norms of customary international law concerning self-defence as a sequel to an armed attack. However, the Court stressed that this was due to the circumstances of the case, and it passed no judgment on the 'issue of the lawfulness of a response to the imminent threat of armed attack'."
129. In order to illustrate the concept of preventive measures in anticipation of an armed attack the author referred as to the raiding of nuclear installations of Iraq by the Israeli aircrafts in 1981 (see page 186). Then he referred to Israeli attack on "Egypt in 1967 as follows:-
130. "Israel was the first to open fire. Nevertheless, a careful analysis of the events surrounding the actual outbreak of the hostilities (assuming that the factual examination was conducted, in good faith, at the time of action) would lead to the conclusion that the Israeli compaign amounted to an interceptive self-defence, in response to an incipient armed attack by Egypt (joined by Jordan and Syria). True, no single Egyptian step, evaluated alone, may have qualified as an armed attack. But when all of the measures taken by Egypt (especially the peremptory ejection of the United Nations Emergency Force from the Gaza Strip and the Sinai Peninsula; the closure of the Straits of Tiran; the unprecedented build up of Egyptian forces, along Israel's borders; and constant sabrerattling statements about the impending fighting) were assessed in the aggregate, it seemed to be crystal-clear that Egypt was bent on an armed attack, and the sole question was not whether war would materialize but when."
(ii) Cases and Materials on International Law by D.J. Harris, Fifth Edition, 1998, in which the author has inter alia referred to the aforesaid Resolution of the United Nations of 1974 on the definition of "aggression" i.e.
131. General Assembly Resolution. 3314 (XXIX) 14 December, 1974. G.A.O.R. 29th Session, Supp.31, p.142; (1975) 69 A.J.IL.480 and quoted above Articles which read as under:-
132. "Article 1
133. Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.
134. Explanatory note: In this definition the term "State":
(a) is used without prejudice to questions of recognition or to whether a State is a Member of the United Nations;
(b) includes the concept of a "group of States" where appropriate.
135. Article 2
136. The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned-or their consequences are not of sufficient gravity.
137. Article 3
138. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or an annexation by the use of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State; .. .
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
139. Article 4
140. The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.
141. Article 5
1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.
2. ???????? A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.
3. ???????? No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.
142. Article 6
143. Nothing in this definition shall be construed as in any way enlarging or diminishing the scope of the Charter including its provisions concerning cases in which the use of force is lawful. "
(iii) Cases and Materials on International Law 1995-96 by Martin Dixon, in which the author has commented upon Article 51 of the United Nations Charter inter alia as under:-
144. "The outright lie about who attacked first is not, however, the only or, probably, the principal problem. The most significant factor in complicating the 'simple' right of self-defence accorded by Article 51, rather, has been the changing nature of warfare itself... Modern warfare... has inconveniently bypassed Queens berry-like practices. It tends, instead, to proceed along two radically different lines, one too small and the other too large to be encompassed effectively by Article 51. These two categories are, first, wars of agitation, infiltration and subversion carried on by proxy through national liberation movements; and, second nuclear wars involving the instantaneous use, in a first strike, of weapons of near-paralyzing destructiveness.
145. Ambiguities and complexities thus lurk behind the misleadingly simple rule in Article 2(4) prohibiting the use of force in international relations and in the carefully delimited exceptions to that rule. Changing circumstances of international relations, of the way nations perceive their self-interest, of strategy and tactics, have combined to take advantage of these latent ambiguities, enlarging the exceptions to the point of virtually repealing the rule itself.
146. A particularly significant part in this development has been played by regional organizations. Articles 52 and 53 of the Charter have been interpreted to legitimate the use of force by regional organizations in their collective self-interest, and, specifically, the role and primacy of regional organizations in settling disputes between their members. These exceptions to Article 2(4) and their application in practice have played an important, perhaps the most important, role in the growth of international violence over these past twenty-five years..."
21. It seems that in section 102 of the Government of India Act, 1935, ? hereinafter referred to as the Act, subsection (5) was added by the Government of India (Amendment) Act, 1939 on 1-9-1939 by the subsection (3) of the above amending Act which provided that at the end of section 102 of the Act, there shall, for-the avoidance of doubt, be inserted the following subsection i.e. subsection (5) already quoted hereinabove. The use of the words "for the avoidance of doubt" indicates that then it was thought that subsection (1) of ? section 102 of the Act which empowered the Governor-General to impose Emergency for the reasons mentioned therein which corresponds to clause (1) of Article 232 of the Constitution, was not explicit on the question, as to whether it covered only actual war or did it also cover the case of imminent danger thereof. One can urge that the framers of the above new subsection (5) to section 102 of the Act were of the view that though factually and legally subsection (1) of section 102 covered both actual war and imminent danger thereof but it needed clarification for removal of doubt. However; the framers of the Indian Constitution in 1950 knowing fully well the above legislative history of section 102 of the Act deemed it fit and proper to provide clause (3) in Article 352 of the Indian Constitution for imposition of Emergency before the actual occurrence of war or any aggression or disturbance if the President was satisfied that there was imminent danger thereof. The above clause was converted into an Explanation by the Constitution (Forty-Fourth Amendment) Act, 1978 with effect from 20-6-1979. There is nothing on record to indicate. what prompted the Indian Parliament to convert the above clause (3) into an Explanation. However, the very fact that the Indian Parliament after the expiry of nearly 25 years thought it fit to convert a substantive clause i.e. clause (3) of 1 Article 352 into an Explanation which is generally declaratory and explanatory ? or ? nature (though some time an explanation may extend the scope of the provision to which it is appended or it may provide a fictional situation by pressing into service deeming technique as was done in the case of Bengal Immunity Co. Ltd. v. The State of Bihar (supra) indicates that either the legislative history of incorporation of subsection (5) of section 102 of the Act was overlooked at the time of framing of the Indian Constitution in 1950 or the Indian Parliament at the time of passing of the Constitution (Forty-Fourth Amendment) Act took cognizance of the factum that the concept of war and external aggression had undergone material change in view of the extension of scope of war and external aggression because of the definition of the term "war" given by the United Nations and in some international instruments referred to hereinabove.
147. In Pakistan the distinction between actual war and actual aggression on the one hand and imminent danger thereof on the other hand was kept in all the late Constitutions of Pakistan, namely, Article 191 of late 1956 Constitution; Article 30 of late 1962 Constitution and Article 39 of the Interim Constitution of 1972, which have already been reproduced hereinabove. Nothing has been brought on record by the learned Attorney-General or the learned senior counsel for the Federation, Mr.S. Sharifuddin Pirzada, to show as to the reasons why the above distinction was done away in the present Constitution, nor the learned counsel for the petitioners have thrown any light on this aspect.
148. One view could be as urged vehemently by Mr. Abid Hasan Minto that this was a deliberate omission on the part of the Constitution-makers as to restrict the scope of imposition of Emergency only in case of an actual war or actual aggression. M/s. Abid Hasan Minto and Hamid Khan were at pain to point out that all the previous Emergencies were imposed in Pakistan on account of actual wars. The other view could be as canvassed by Mr.S. Sharifuddin Pirzada that since war and external aggression would cover both actual war or aggression and imminent danger thereof, there was no need to have a separate provision in the present Constitution. I might have opted for the former view if I were to overlook two important aspects, firstly that a Constitution is an organic document designed and intended to cater the needs for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirements of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from their context. [I have held so in the case of Al-Jehad Trust (PLD 1996 SC 324)]. Secondly, the modern concept of war or external aggression as reflected in the above United Nations Resolution, and other international documents and treatises indicates that the concept of war or external aggression has undergone material change, the old definition or concept under international customary law does not hold the ground. Now it is difficult to demarcate between actual war or actual external aggression or imminent danger thereof. In this behalf reference may be made to the Manual of Public International Law, Edited by Max Sorensen, 1968 Publication, relied upon by Ch. Muhammad Farooq, learned Attorney-General, in which the author has highlighted the contemporary development in the technology of war in particular the existence of thereto-nuclear weapons and the speed with which they can be used against an adversary. The author has further highlighted that today long-range missiles with nuclear warheads are able to devastate whole regions and countries, the difference between actual and imminent attack becomes negligible. It may also be pointed out that somewhat the same view was taken by the Australian Court in the case of Marcus Clark & Co. Ltd. v. The Commonwealth (1952) 87 CLR 177, referred to hereinbelow in para. (35) (vii), wherein Fullagar, J. observed as under:
149. "Thus Dixon, J. said; 'it is no doubt true that a mounting danger of hostilities before any actual outbreak of war will suffice to extend the operation of the defence power, as circumstances may appear to demand."
22. Adverting to the above second question, whether the pre-conditions provided for in clause (1) of Article 232 for invoking the same were present on 28-5-1998 when the President issued the impugned Proclamation of Emergency, it may be observed that the thrust of the arguments of the learned counsel for the petitioners was that the President, as a prudent and a reasonable person, could not have been satisfied on the evening of 28th May, 1998, that there was a grave emergency in which the security of Pakistan or any part thereof was threatened by war or external aggression or by internal disturbance beyond the power of a Provincial Government to control. According to M/s. Shahzad Jehangir and Muhammad Ikram Chaudhry, one could urge before the detonation of the nuclear devices by Pakistan that there was some threat from the Indian side of war or external aggression on account of their belligerent attitude, hostile statements of the Indian Prime Minister and some Ministers of his Cabinet and their activities in Jammu and Kashmir, but the same disappeared after Pakistan had successfully exploded nuclear devices in the afternoon of 28-5-1998. To reinforce the above submission, they have invited the Court's attention to the statements of the Prime Minister of Pakistan and some of his Ministers, in which, it was claimed that Pakistan's defence was secured and nobody could dare to think to attack Pakistan. The stand of the other learned counsel for the petitioners and the learned counsel appearing as amicus curiae was that at no point of time situation obtaining in Pakistan in May, 1998 or earlier was, which could justify the imposition of Emergency. The learned counsel for the petitioners submitted that the use of the word "satisfied" in clause (1) of in nature (though some time an explanation may extend the scope of the provision to which it is appended or it may provide a fictional situation by pressing into service deeming technique as was done in the case of Bengal Immunity Co. Ltd. v. The State of Bihar (supra) indicates that either the legislative history of incorporation of subsection (5) of section 102 of the Act was overlooked at the time of framing of the Indian Constitution in 1950 or the Indian Parliament at the time of passing of the Constitution (Forty-Fourth Amendment) Act took cognizance of the factum that the concept of war and external aggression had undergone material change in view of the extension of scope of war and external aggression because of the definition of the term "war" given by the United Nations and in some international instruments referred to hereinabove.
150. In Pakistan the distinction between actual war and actual aggression on the one hand and imminent danger thereof on the other hand was kept in all the late Constitutions of Pakistan, namely, Article 191 of late 1956 Constitution; Article 30 of late 1962 Constitution and Article 39 of the Interim Constitution of 1972, which have already been reproduced hereinabove. Nothing has been brought on record by the learned Attorney-General or the learned senior counsel for the Federation, Mr.S. Sharifuddin Pirzada, to show as to the reasons why the above distinction was done away in the present Constitution, nor the learned counsel for the petitioners have thrown any light on this aspect.
151. One view could be as urged vehemently by Mr. Abid Hasan Minto that this was a deliberate omission on the part of the Constitution-makers as to restrict the scope of imposition of Emergency only in case of an actual war or actual aggression. M/s. Abid Hasan Minto and Hamid Khan were at pain to point out that all the previous Emergencies were imposed in Pakistan on account of actual wars. The other view could be as canvassed by Mr.S. Sharifuddin Pirzada that since war and external aggression would cover both actual war or aggression and imminent danger thereof, there was no need to have a separate provision in the present Constitution. I might have opted for the former view if I were to overlook two important aspects, firstly that a Constitution is an organic document designed and intended to cater the needs for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirements of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived from their context. [I have held so in the case of Al-Jehad Trust (PLD 1996 SC 324)]. Secondly, the modern concept of war or external aggression as reflected in the above United Nations Resolution, and other international documents and treatises indicates that the concept of war or external aggression has undergone meterial change, the old definition or concept under international customary law does not hold the ground. Now it is difficult to demarcate between actual war or actual external aggression or imminent danger thereof. In this behalf reference may be made to the Manual of Public International Law, Edited by Max Sorensen, 1968 Publication, relied upon by Ch. Muhammad Farooq, learned Attorney-General, in which the author has highlighted the contemporary development in the technology of war in particular the existence of thereto-nuclear weapons and the speed with which they can be used against an adversary. The author has further highlighted that today long-range missiles with nuclear warheads are able to devastate whole regions and countries, the difference between actual and imminent attack becomes negligible. It may also be pointed out that somewhat the same view was taken by the Australian Court in the case of Marcus Clark & Co. Ltd. v. The Commonwealth (1952) 87 CLR 177, referred to hereinbelow in para. (35) (vii), wherein Fullagar, J. observed as under:
152. "Thus Dixon, J. said; 'it is no doubt true that a mounting danger of hostilities before any actual outbreak of war will suffice to extend the operation of the defence power, as circumstances may appear to demand."
22. Adverting to the above second question, whether the pre-conditions provided for in clause (1) of Article 232 for invoking the same were present on 28-5-1998 when the President issued the impugned Proclamation of Emergency, it may be observed that the thrust of the arguments of the learned counsel for the petitioners was that the President, as a prudent and a reasonable person, could not have been satisfied on the evening of 28th May, 1998, that there was a grave emergency in which the security of Pakistan or any part thereof was threatened by war or external aggression or by internal disturbance beyond the power of a Provincial Government to control. According to M/s. Shahzad Jehangir and Muhammad Ikram Chaudhry, one could urge before the detonation of the nuclear devices by Pakistan that there was some threat from the Indian side of war or external aggression on account of their belligerent attitude, hostile statements of the Indian Prime Minister and some Ministers of his Cabinet and their activities in Jammu and Kashmir, but the same disappeared after Pakistan had successfully exploded nuclear devices in the afternoon of 28-5-1998. To reinforce the above submission, they have invited the Court's attention to the statements of the Prime Minister of Pakistan and some of his Ministers, in which, it was claimed that Pakistan's defence was secured and nobody could dare to think to attack Pakistan. The stand of the other learned counsel for the petitioners and the learned counsel appearing as amicus curiae was that at no point of time situation obtaining in Pakistan in May, 1998 or earlier was, which could justify the imposition of Emergency. The learned counsel for the petitioners submitted that the use of the word "satisfied" in clause (1) of Article 232 of the Constitution indicates that the basis for formation of opinion by the President should be sound. To support the above submission, they relied upon inter alia the case of Ghulam Jilani v. Government of Pakistan and the case of Abdul Baqi Baloch v. Government of Pakistan.
153. In the first case, Cornelius, C.J. while construing the word "satisfaction" used in Rule 32 of the Defence of Pakistan Rules observed as under: -
154. "The requirement of satisfaction contained in rule 32 involves the exercise of judgment in relation to a number of relevant factors. Belief would be necessary as to the existence of certain facts and the potentiality they possess of danger to public order and thereafter upon an appreciation of all the surrounding circumstances, there would required to be made an estimate as to the extent of action needed to prevent the apprehended eventualities. To suggest that the delegate of power under rule 32 is not charged with the duty of exercising such judgment is absurd. Appreciation of situations in the field of law and order is primarily a function of the Provincial Government and its officers, who are in the best position to gain direct information of all the relevant factors. Here, the detention orders were made expressly for preservation of the public order. It cannot be argued that it was for the Central Government to exercise its judgment so as to be satisfied of the need of preventive action, and upon its communication of such satisfaction, the Provincial Government was merely to perform the machinery function of issuing the order of detention. and seeing it carried out. The words of section 3 and rule 32 cannot reasonably bear such an interpretation. "
155. Whereas in the second case Hamoodur Rahman, J. (as his Lordship then was), while construing Rule 32 of the Defence of Pakistan Rules and after referring the case of Ghulam Jilani (supra), made the following observations as to the import of the words "being satisfied":
156. "Before parting with this question, I would also like to add that though it is true that there is a difference between 'being satisfied' and 'suspecting upon reasonable grounds' the difference, in my humble opinion, is this that the former connotes a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken it out of the stage of suspicion. If so, then is it not reasonable to presume that the law by making such a significant differentiation intended to cast a duty of a more onerous nature upon the person charged with duty of being satisfied and to 'satisfy' the Court that he had acted in such manner. "
157. Reference was made to the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657, wherein S. Anwarul Haq, C.J. compared a situation obtaining on 5-7-1977 culminating in the Proclamation of Martial Law, with the situation of the kind contemplated in clause (1) of Article 232 of the Constitution as follows:
158. "It has already been seen that the conditions culminating in the Proclamation of Martial Law on the 5th of July 1977, were so grave that the very existence of the country was threatened, 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 made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision."
159. They have also referred to the definitions of the words "satisfied", external" and "aggression" given in the following dictionaries:-
160. Ballentine's Law Dictionary:
161. "Satisfied. Paid. Philadelphia Picking Co. v Maryland Casualty Co. 89 NJL 330, 98 A.
43. Approving of performance, having received satisfaction. "
162. Black's Law Dictionary:
163. "Satisfy" to answer or discharge, as a claim, debt, legal demand or the like. Swatter v. Union Mortg. Co,
99. Utah 298, 105 P.2d 342, 345. To comply actually and fully with a demand; to extinguish, by payment or performance. To convince, as to satisfy a jury."
164. Law Terms and Phrases by M. Ilyas Khan:
165. "Satisfied". "The word 'satisfied' is a term of considerable expensiveness. The term 'satisfied' has been understood to mean, free from anxiety, doubt, perplexity, suspense or uncertainty."
166. Hand Book of Legal Terms and Phrases by M. Ilvas Khan:
167. "Satisfied". The phrase 'satisfied' means, in my view, simply makes up its mind per Lord Pearson in Blyth v. Blyth (1966) AER 524 (541).
168. Dixon J., defined it as 'actual persuation'. That means a mind not troubled by doubt or to adopt the language of Smith, J. a mind which has reached a clear conclusion.
169. Legal Thesaurus by William. C. Buston:
170. "Satisfy" answer the purpose, appease, avail, be agreeable, be sufficient, carry out, comply with, conform to, content, fill, fit gratify, meet requirements, please, prove acceptable, qualify, quench, sate, satiate, serve the purpose, set at ease, slake, surfice, suit, surfeit. "
171. Stroud's Judicial Dictionary by John, S. James:
172. "To be 'satisfied' with a state of things, means to be honestly satisfied in your own mind; it does not, by itself, 'mean that reasonable care is to be taken to make inquiries before being satisfied, e.g. a constable acted properly if he was, in his own mind, honestly 'satisfied that it is necessary for the public safety or the welfare of an alleged lunatic' to remove the latter to a workhouse under section 20, Lunacy Act, 1890.
173. Words and Phrases Legally Defined by John B. Saunders:
174. "The phrase 'is satisfied' means, in my view, simply 'makes up its mind'; the Court on the evidence comes to a conclusion which, in conjunction with other conclusions, with lead to the judicial decision. There is no need or justification for adding any adverbial qualification to 'is satisfied.'
175. Words and Phrases Published by West Publishing Co.:
176. "Satisfy" ordinarily signifies something more than a belief founded on a preponderance of evidence, and hence its use, in an instruction that the jury should be satisfied from all the facts and circumstances shown in evidence, is erroneous. Rosenbaum Brothers v. Levitt, 80 N.W. 393, 394, 109 Lowa, 292." ??
177. Manual of Law Terms and Phrases by Sardar Muhammad Iqbal Khan Mbkal
178. "Satisfied". The word 'satisfied' is a term of considerable expensiveness. The term 'satisfied' has been understood to mean, free from anxiety, doubt, perplexity, suspense or uncertainty. In this context it is synonymous with, 'convinced beyond a reasonable doubt'. In order that a Magistrate be relieved of all doubts or uncertainty and for his mind to be reasonably certain or free from doubt, it is necessary that he should permit parties concerned to place before him sufficient material, justifying initiation of the proceedings.
179. Black's Law Dictionary:
180. "External". Apparent, outward, visible from the outside, patent, exterior, capable of being perceived. Acting from without, as the external surface of a body; physical or corporeal, as distinguished from mental or moral.
181. A Supplement to the Oxford English Dictionary, Vol. I.:
182. "External". Situated or lying outside pertaining to, or connected with, the outside or outer portion of anything.
183. Chamber's Dictionary:
184. "Aggression" meaning aggressive behaviour or trouble-making, esp. between gangs, racial groups etc.
185. Manual of Law Terms and Phrases by Mulla:
186. "Aggression". An inroad, invasion or encroachment of rights of another. It is also used to indicate the act of proceeding to hostilities or invasion of another country without any apparent cause for conflict.
23. M/s. Shabbar Raza Rizvi and Hamid Khan have relied upon three cases decided by the European Court of Human Rights. Reference to the same has also been made by Mr. S. Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing for the Federation, namely:
(i) Lawless v. Ireland (No.3) (1961) 1 European Human Rights Reports 15.
187. In the above case the facts were that the applicant, an Irish citizen and a member of the Irish Republican Army, was detained without trial for five months under the Irish Offences against the State Act by order of the Minister of Justice. The applicant's claim that his detention violated his right to liberty under Article 5, the prohibition on retroactive criminal law or punishment under Article 16, and his right to a fair trial under Article 7. He claimed damages and costs. The respondent Government in defence pleaded that the applicant's detention was not in conflict with its obligations under Articles 5, 6 and 7 of the European Human Rights Convention and that in any event there existed a public emergency threatening the life of the nation within the meaning of Article 15(1) justifying derogation from its obligation under the Convention. It may be pertinent to mention that Article 15(l) of the European Human Rights Convention provides that a high contracting party may derogate from its obligations under the Convention only to the extent strictly required by the exigencies of the situation. The unanimous view of the Court was as under:-
188. "For these reasons, THE COURT unanimously:
(1) ??????? Dismiss the plea in bar derived by the Irish Government from Article 17 of the Convention.
(2) ??????? States that Articles 5 and 6 of the Convention provided no legal foundation for the detention without trial of G.R. Lawless from 13th July to llth December, 1957 by virtue of Article 4 of the Offences against the State (Amendment) Act, 1940.
(3) ??????? States that there was no breach of Article 7 of the Convention.
(4) ??????? States that the detention of G.R. Lawless from 13th July to 11th
189. . ?????????? December, 1957 was founded on the right of derogation duly exercised by the Irish Government in pursuance of Article 15 of the Convention in July, 1957.
(5) ??????? States that the communication addressed by the Irish Government to the Secretary-General of the Council of Europe on 20th July, 1957 constituted sufficient notification within the meaning of Article 15(3) of the Convention.
(6) ??????? Decides, accordingly, that in the present case the facts found do not disclose a breach by the Irish Government of their obligations under the Convention.
(7) ??????? Decides, therefore, that the question of entitlement by G.R. Lawless to compensation in respect of such a breach does not arise."
190. Judge Maridakis, in his separate opinion, has dilated upon inter alia on the finding that the Irish Government had not violated the provisions of Article 15 of the Convention as follows:-
191. "(1) ????? The Irish Government have not violated the provisions of Article 15 of the Convention.
(2) ??????? When the State is engaged in a life and death struggle no one can demand that it refrain from taking special emergency measures: salus rei publicae suprema lex est. Article 15 is founded on that principle.
(3) ??????? Postulating this right of defence, the Convention provides in this Article that 'in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention', provided, however, that it does so only 'to the extent strictly required by the exigencies of the situation' and 'provided that such measures are not inconsistent with its other obligations under international law'.
(4) ??????? By 'public emergency threatening the life of the nation' it is to be understood a quite exceptional situation which imperils or might imperil the normal operation of public policy established in accordance with the lawfully expressed will of the citizens, in respect alike of the situation inside the country and of relations with foreign powers."
192. ? (ii) The Republic of Ireland v. The United Kingdom:
193. (Before the European Court of Human Rights) (1978 2 European Human Rights Reports 25). .
194. In the above case the British Government encountered serious acts of terrorism perpetrated by members of the Irish Republican Army (IRA) and Loyalist groups in Northern Ireland, introduced special powers of arrest and detention without trial, which were widely used, chiefly against the IRA. Notices of derogation under Article 15(1) were lodged with the Secretary General of the Council of Europe in view of the public emergency threatening the life of the nation. The Government of the Republic of Ireland filed an application before the Human Rights Commission alleging inter alia as under:-
195. "(i) that the extra-judicial detention infringed Article 5 (right to liberty) and was not saved by Article 15: (ii) that various interrogation practices--in particular the so-called 'five techniques', which included wall-standing, hooding and deprivation of sleep and food--and other practices to which suspects were subjected amounted to torture and inhuman or degrading treatment contrary to Article 3: and (iii) that the use of the special powers primarily against IRA members constituted discrimination in violation of Article 14. "
196. The Commission unanimously found that the five techniques did constitute a practice of torture and that the other practices prompted to inhuman treatment but, at the same time, it found that there was no infringement of Article 14 and the derogations from Article 5 were justified under Article 15. The applicant Government referred the case to the European Court of Human Rights. The Court held as follows:
197. "(i) The British Government's attitude in failing to accord the Commission full assistance, as required by Article 28(a), was regretted [ 148) .
198. Interrogation of suspected terrorists, torture and inhuman or degrading treatment. Existence of a practice. Exhaustion of domestic remedies. Responsibility for subordinates. Burden and standard of proof. Article 3. Consequential order.
199. (ii)(a) The non-contested violations should be determined, even though the British Government had taken steps to eliminate the offending practices, since the Court had the responsibility to elucidate safeguard and develop the Convention [ 154] . "
(iii) ?????? V. Opinion of the Commission on the Question whether there was on 21st April, 1967, a public Emergency in Greece threatening the life of the Nation. (1969) 12 Yearbook of European Convention at p.71. in which opinion was sought of the European Human Rights Commission on the question, whether there was on 21-4-1967 a public emergency in Greece threatening the life of the nation. The opinion of the Commission contained very learned discourse on all aspects of a public emergency. The Commission defined the characteristics of a public emergency as under:-
200. "153. Such a public emergency may then be seen to have, in particular, the following characteristics:
(1) ??????? It must be actual or imminent.
(2) ??????? Its effects must involve the whole nation
(3) ??????? The continuance of the organised life of the community must be threatened.
(4) ??????? The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate."
201. Whereas on the question of burden of proof for justifying measure of derogation under Article 15 of the European Human Rights Convention, the Commission opined as under:-
202. "
154. The Commission considers that in the present case the burden lies upon the respondent Government to show that the conditions justifying measures of derogation under Article 15 have been and continue to be met, due regard being had to the 'margin of appreciation' which, according to the constant jurisprudence of the Commission, the Government has in judging the situation in Greece as from the moment it assumed power on 21st April, 1967."
203. The Commission while discussing the effect of history of demonstrations, strikes and work stoppage in the first months of 1967 in certain cities of Greece opined that the same did not justify public emergency as under:-
204. "160. The Commission further does not accept the suggestion of the respondent Government that the street demonstrations, strikes and work stoppages in the first months of 1967 attained the magnitude of a public emergency. Though the street demonstrations, as anywhere, created anxiety for persons and property in Athens and Salonica, the record does not show the police forces to have been at or even near the limit of their capacity to cope with demonstrations and disorder and they acted without need of assistance from the armed services. In particular, they cleared the University buildings in Salonica of its illegal occupants ' in a few minutes' on 11th April, 1967. The order prohibiting the 'Marathon March, to be held on 16th April, 1967, and the obedience to it, is further indication that the Government was in effective control of the situation.
161. The picture of strikes and work stoppages does not differ markedly from that in many other countries in Europe over a similar period; indeed, as regards the length of strikes and stoppages it is more favourable than in some. There is certainly no indication that there was any serious dis-organisation, let alone one involving the whole nation, of vital supplies, utilities or services, as a result of strikes. "
205. The above question was answered by the Commission in the negative for the following two reasons:-
206. "(1) ????? If it is said that the possibility of the formation of a 'Popular Front' Government, with its probable consequence of a Communist takeover of Government, constituted in itself a public emergency threatening the life of the nation, the Commission does not consider that it has been shown, from the state of the patties or the political situation generally, that the formation of a 'Popular Front' Government after the May elections was certain or even likely;
207. ?
(2) ??????? on the other hand, there was no indication on 21st April, 1967, that either before or after the May elections, public disorder would be fomented and organised to a point beyond the powers of the police to ? control: on the contrary, the speed with which a large number of
208. ? communists and their allies were themselves 'neutralised' on 21st April, 1967, suggests that, for all their supposed plans, they were incapable of any organised action in a crisis."
209. It may be pertinent to point out that Mr. Busuttil, one of the members of the Commission, had given his dissenting opinion.
210. According to Mr. Hamid Khan, Advocate Supreme Court in order to justify the imposition of Emergency under clause (1) of Article 232 of the Constitution, four characteristics highlighted by the European Commission in the above-quoted para. 153 of the report are necessary or pre-conditions.
24. Mr. Shabbar Raza Rizvi, besides relying upon the above characteristics, has vehemently urged that Articles ,232 and 233 should not be construed it isolation but they are to be interpreted with reference to other Articles of the Constitution which have salient features, namely, (i) Islamic provisions, (ii; Federalism, (iii) Parliamentary form of Government, and (iv) securing o independence of Judiciary etc. According to him, the scheme of the Constitution does not permit the President to press into service clause (I) of Article 232 of the Constitution in a casual manner. He has referred to the case of Sarda Muhammad Muqeem Khoso v. President of Pakistan PLD 1994 SC 412 to canvass that by virtue of The Objectives Resolution, which has now become substantive part of the Constitution by Article 2A, sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the. people of Pakistan through their chosen representatives within the limits prescribed by Him is a sacred trust and any abuse of position on the part of the chosen representatives will amount to the breach of the above sacred trust entailing heavenly and worldly punishment. To reinforce the above submission he has also referred to the case of Dervesh M. Arobi v. Federation of Pakistan through the Law Secretary and 2 others (PLD 1980 Lahore 206 at 266) and the case of Niaz Ahmed Khan'v. Province of Sindh and others (PLD 1977 Karachi 604 at 669).
211. He has also referred to the case of Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671), wherein the question at issue was, whether the proceedings initiated by the Deputy Commissioner. Peshawar. under section 8 of the Frontier Crimes Regulations (III of 1901) at the behest of some of the relations of late Khan Sahib Mahmood Jan Khan, who died in 1919, were without jurisdiction on the grounds of (i) mala fide, (ii) absence of conditions precedent for making reference, objective existence of danger of breach of peace and subjective satisfaction of Deputy Commissioner thereto, and (iii) plea of res judicata. The appeal filed before the Supreme Court had arisen out of the suit in which the above points were agitated. On the question of mala fide, Kaikaus, J. who spoke on behalf of the Court, made the following observation:-
212. "But whatever the phraseology employed, any provision in an enactment saying that orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law has reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction. Of course it is open to the Legislature to provide that not only acts done under an enactment, but even acts which purport to be done under an enactment will be immune from challenge. Such a provision will however be a very exceptional one, a provision which we are likely to come across only during a national emergency.
213. The decision of the question whether the Civil Court had jurisdiction in the present case would depend on whether the impugned orders and proceedings were without jurisdiction. There is in this case an attack on the proceeding on the ground of mala fide too. A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."
214. As regards the subjective satisfaction, it was held that it shall be for the Court to determine, whether the objective existence of a danger of a breach of peace or the subjective satisfaction of the Deputy Commissioner as to this fact was a precedent for making a reference and if so, whether such danger or subjective satisfaction existed.
215. Then he has referred to the Commentary on the Constitution of India by Dr. (Justice) Durga Das Basu, Sixth (Silver Jubilee) Edition, Volume N. The author points out the distinction between Article 356 and Article 352 of the Indian Constitution by observing that what is at stake under Article 356 is Constitutional Government in a State; under Article 352 the existence of the nation itself is at stake. He also made the following observations:
216. "In short, the bona fides of the President's satisfaction (though founded on ministerial advice) can be inquired into by the Court, to strike down the Proclamation under Article 356(1) as mala fide, if it is proved that it related to some ground other than a break-down of the Constitutional machinery in the State concerned.
217. The question is, whether the foregoing observations, made in relation to Article 356(1), can be straight away applied to a Proclamation under Article 352(1) without further consideration, though Articles 352(1) and 356(1) are similarly worded regarding the President's satisfaction. The special considerations which arise in the case of an emergency due to war or similar crisis are as follows:
218. ' In all countries, an emergency caused by war or external aggression is viewed by the Courts as a more sensitive area than emergencies caused by internal disruptions, from the standpoint of judicial interference. Before applying the principles evolved in a case under Article 356 to a case under Article 352 relating to war or external aggression, the Indian Supreme Court might hark back to Lord Atkinson in R. v. Halliday .......
219. He has also referred to the Constitutional Law of India, A Critical Commentary, Fourth Edition, by H.M. Seervai, Volume 3, 1996 Edition. In the said treatise, the author has highlighted the defects in the original Article 352 of the Indian Constitution and pointed out that some of the same have been removed by the Constitution (Forty-Fourth) Amendment Act. The relevant extract reads as follows:
220. "29.6. The excesses of the Emergency have focused attention on the following defects of Article 352 as originally enacted: (a) Although in form the Proclamation is issued on the satisfaction of the President, in reality it is issued on the satisfaction of the Union. Government. The Article did not exclude the possibility of a Prime Minister advising the issue of a Proclamation on his or her own initiative without the authority of the Cabinet--as Mrs. Gandhi did, professing that a rule of business enabled her to act as she did. (b) Once the proclamation of emergency had been approved by both Houses within the stipulated period, no provision was made for bringing the continuance of the Proclamation before the House for approval every 6 months as had been provided for in Article 356 (Proclamation on the failure of Constitutional machinery in a State). Nor was any machinery provided for enabling members of Parliament to move that the Proclamation be disapproved or revoked. The 44th Amendment has removed these 21 defects. A Prime Minister cannot now advise the President to make a ? Proclamation of Emergency on the Prime Minister's sole authority, for the amended Article requires that a proclamation shall not be made 'unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under Article 75) that such proclamation may be issued has been communicated to the President in writing.' Secondly, the approval of the proclamation by each House is to be given within one month and not two months as before; and the approval was not to be by a simple majority as before, but by a majority of not less than half the membership of each House and a majority of two-third of those present and voting. Thirdly, a provision has been made that a proclamation of emergency would lapse within 6 months unless each House has approved of its continuance by the aforesaid majorities and this provision applies to the continuance of the proclamation."
25. Mr. Muhammad Ikram Chaudhry also more or less contended as above, and urged that the responsibility and control are fundamental ingredients of any democratic Constitution as enunciated by Professor Ulrich Scheuner, Professor of Public Law at University of Bonn. According to him, the responsibility always involves two poles; the one that is responsible and the one to whom the responsibility is owed. His submission was that the imposition of Emergency does not fit ? in a democratic Government. He has referred to the case of Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486, wherein he heavily relied upon the observation of Cornelius, C.J. as to the duties and power of the superior Courts. The relevant extracts read as under: -
221. "The Judges of the Supreme Court and the High Courts when they enter upon their office, are required to swear an oath that they will 'preserve, protect and defend the Constitution'. Such an oath has to be taken also by the President, by the Governors, by the Ministers and by the Speakers, and Deputy Speakers as well as all Members of the Assemblies . . . . ???? . ????????? . . ???????? . . . ?????? . . . ??????????? . . . ?????? . . . ?????? . . . ?????? . . . ?????? . . . ?????? . ????????? .. ????????? . ?????????? .. ????????? . ?????????? . . . ?????? . . . ??????????? .. ????????? . ?????????? ... ???????? . . . ?????? .
222. The reasons why the Judges of the Supreme Court and the High Courts have to take a similar oath can in my opinion be found within the simple provisions of Article 58. It is there provided for all persons in Pakistan that in any case where it becomes necessary for them to assert in their interest, any provision of the Constitution, they shall have access to the High Courts and through the High Courts to the Supreme Court as of right, and these two Courts are bound by their oath and duty to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects safe from all defeat or harm, and to stand firm in defence of its provisions against attack of any kind. The duty of 'interpreting the Constitution is, in fact a duty of enforcing the provisions of the Constitution in any particular case brought before the Courts in the form of litigation. Mr. Brohi has invited our attention to a brief statement by the well-known political philosopher Kelson on this subject, viz.:-
223. 'If the legal order does not contain any explicit rule to the contrary, there is a presumption that every law-applying organ has this power of refusing to apply unconstitutional laws. Since the organs are entrusted with the task of applying 'law' they naturally have to investigate whether a rule proposed for application really has the nature of a law. Only a restriction of this power is in need of explicit provision.'
224. A more explicit statement of the principle will be found in Coley's Constitutional Limitations, which I reproduce below:-
225. 'We shall find the general rule to be, that whenever action is taken which may become the subject of a suit or proceeding in Court, any question of Constitutional power or right that was involved in such action will be open for consideration in such suit of proceeding, and that as the Courts must finally settle the particular controversy, so also will they finally determine the question of Constitutional law.
226. For the Constitution of the State is higher in authority than any law, direction, or order made by anybody or any _ officer assuming to act under it, since such body or officer must exercise a delegated authority, and one that must necessarily be subservient to the instrument by which the delegation is made. In any case of conflict the fundamental law must govern, and the act in conflict with it must be treated as of no legal validity. But no mode has yet been devised by which these questions of conflict are to be discussed and settled as abstract questions, and their determination is necessary or practicable only when public or private rights would be affected thereby. They then become the subject of legal controversy; and legal controversies must be settled by the Courts. The Courts have thus devolved upon them the duty to pass upon the Constitutional validity, sometimes of legislative; and sometimes of ? executive acts., And as Judicial Tribunals have authority, not only to judge, but also to enforce their judgments, the result of a decision against the constitutionality of a legislative or executive act will be to render it invalid through the enforcement of the paramount law in the controversy which has raised the question . . . . . . . . . ... , , , , . , . , . . , . , , , , The Constitution is the fundamental law of the State, in opposition to which any other law, of any direction or order must be inoperative and void, if, therefore, such other law, direction or order seems to be applicable to the facts but on comparison with the fundamental law the latter is found to be in conflict with it, the Court, in declaring what the law of the case is, must necessarily determine its invalidity, and thereby in effect annul it. Trite right and the power of the Courts to do this are so plain, and the duty is no generally--we may almost say universally-conceded, that we should not be justified. in wearying the patience of . the reader in quoting from the very numerous 'authorities upon the subject'. The general principle being that the superior Courts have an inherent duty, together with the appurtenant power, to ascertain and enforce the provisions of the Constitution in any case coming before them, and this being derivable also from express provisions in our Constitution, it is necessary to see whether, in respect of the Order here in question, namely, the President's Order No.34 of 1962, (a) such a responsibility falls to be discharged and (b) such a judicial action is not; barred by any provision in the Constitution. "
227. He has also referred to Corpus Juris Secundum, Volume 16 to highlight the scope of modern Constitution and particularly, relied upon the following observations:-
228. "As otherwise expressed, a Constitution serves to protect the people against arbitrary power, the purpose is not to legislate in detail but to set limits on the otherwise plenary power of the Legislature; and inherent rights appertaining to any branch of Government may be altered by the Constitution. A Constitution is not primarily designed to protect majorities who are usually able to protect themselves, but to preserve and protect the rights of individuals and minorities against the arbitrary actions of those in authority. It is intended to preserve practical and substantial rights, not to Maintain theories. The failure to exercise a power expressly granted by the Constitution does not destroy that power.
229. Emergencies do not authorize the suspension of the Constitution and its guaranties, and rules of expediency must not be placed above the Constitution. However, the rights guaranteed by a Constitution are not so absolute that they may be exercised' under all circumstances, and without any qualification, but, like other rights, must always be exercised with reasonable regard for the conflicting rights of others. Constitutional guaranties are not immune from regulation or limitation in the interest of the common good. "
230. He has also referred to a large number of case-law, some of which have already been dealt with hereinabove and some of them will be dilated upon hereinafter.
26. Mr. Hamid Khan has inter alia referred to International Law Association Report of 1986 which was the outcome of Sixty-second Conference at Seoul, South Korea, in which the states of emergency have been extensively dealt with. The following observations may be pertinent to the controversy in hand:-
231. "However, general agreement exists on the following basic principles: severity of cause (defined generally as threatening the life of the nation); good faith on the part of the imposing ? Government; proportionality (relating to geographic scope, duration, and choice of measures strictly required by the exigencies of situation); proclamation or notification; non-derogability of certain rights; respect for other international obligations; and non-discrimination. "
27. Mr. Yousuf Leghari, learned Advocate Supreme Court appearing for Pakistan Bar Council, has contended that prerequisites of clause (1) of Article 232 of the Constitution were not present on any date prior to the imposition of Emergency. According to him, the Federal Government had no problem with the four Provincial Governments as Pakistan Muslim League (N) was manning the Governments at the Centre as well as at Provincial levels. Neither there was any war or external aggression nor any internal disturbance in terms of clause (1) of Article 232 existed. He further urged that after the imposition of Emergency the Federal Government has not taken any action in terms of clause (2) of Article 232 in respect of any of the Provinces for the reason that the Emergency was not there. According to him, the imposition of Emergency was mala fide with the object to construct Kala Bagh Dam. To reinforce the above submission, he pointed out that first step which the Federal Government had taken was to amend the Indus River System Authority Act, '1992, hereinafter referred to as the Act, by Ordinance VIII of 1998, whereby certain sections have been omitted/amended in order to facilitate the full control of the Federation over the Indus River System Authority, inasmuch as originally section 4 of the Act provided that the Authority shall consist of five members, one each to be nominated by each of the Provinces and the Federal Government from amongst high ranking engineer in irrigation or related engineering fields. It was also provided that the first Chairman shall be nominated by the Government of Balochistan to be followed by the nominations of the Governments of N.-W.F.P., Punjab, Sindh and the Federal Government and, therefore, in that order and that the office of the Chairman shall be for a period of one year. However, by the amending Ordinance, the Authority shall consist of the following members:-
(i) Chief Engineering Advisor,
232. ????? Ministry of Water and Power,'
233. ?????? Government of Pakistan
234. ?????????????????????????????????????????????????????????????????????????? ???????????????????? ??? ??????????? Chairman
235. ?? (ii) Secretary, Department of Irrigation,
236. ???? Government of Balochistan
237. ????????????????????????????????????????????????????????????????????????????? ????????????????? ??? ??????????? Member
238. ? (iii) Secretary, Department of Irrigation,
239. ?? Government of North-West Frontier Province ??????????? ... ???????? ????? ??. ????????? Member
(iv) Secretary, Department of Irrigation,
240. ????? Government of Punjab
241. ... ??????????????????????????????????????????????????????????????????????????????????????????????????? ??. ????? Member
(v) Secretary, Department of Irrigation,
242. ??? Government of Sindh
243. ?????????????????????????????????????????????????????????????????????????????????????????????????????? ???? ..?... ?? Member
244. The amending Ordinance also provided that the Chairman and the Members of the Authority shall cease to hold office.
245. According to him, this has been done by bypassing the Council of Common Interests provided for under Article 153 of the Constitution. It may be noted that the above Ordinance has been withdrawn a few days back.
28. Mr. Abid Hasan Minto has referred to certain cases of foreign jurisdiction given in Chapter 4 of the treatise titled "Constitutional Interpretation" Cases on American Constitution, 5th Edition, 1992 Publication".
(i) ???????? Ex PMilli an Supreme Court of the United States 1866 71 U.S. (4 Wall' =18 L Ed 281.
246. In the above case in October, 1864, Milligan, a citizen of Indiana, was arrested by order of the Commander of the military district of Indiana for conspiring against the Government, affording aid and comfort to rebels, and inciting the people to insurrection. Milligan was subsequently brought before a military commission, tried found guilty and sentenced to be hanged. In May, 1865, Milligan petitioned a circuit Court to issue an order that he be released from the custody of the military so that he might either have proceedings instituted against him under civil law or be discharged altogether. In addition to the above plea his contention was that the Constitution guaranteed him the right to be tried by jury. It was also contended by him that the March 3, 1863 Act of Congress prohibited the military from keeping him in confinement. A grand jury met and adjourned without bringing an indictment against him. The circuit Court was unable to reach agreement on his request for (i) for a writ of habeas corpus,
(ii) for a discharge from military custody, and (iii) that because he was a citizen and a resident of Indiana and had never served in the military, the commission lacked jurisdiction to try such person. However, the above questions were certificated by the Circuit Bench for the Supreme Court of United States. Justice Davis, who spoke on behalf of the Supreme Court, in the discourse of judgment, made following observations:-
247. "By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our Government were familiar with the history of that struggle; and secured in a written Constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it this question must be determined.
248. ???????????????????.
249. .
250. ????????????????????..
251. Every trial involves the exercise of judicial power; and from what source did the military commission that tried him derive their authority? Certainly no part of the judicial power of the country was conferred on them; because the Constitution expressly vests it ' in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish', and it is not pretended that the commission was a Court ordained and established by Congress. They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is 'no unwritten criminal. code to which resort can be had as a source of jurisdiction."
252. ?????????????.
253. ??????????????.
254. This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded and the calamities of war again befall us, the danger to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew--the history of the world told them--the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus,. "
255. Consequently, the trial by the Federal Commission was held without jurisdiction.
(ii) ??????? Home Building & Loan Association v Blaisdell Supreme Court of the United States (1934) 290 US 398 54 S.Ct.231=78 L.Ed.413.
256. The brief facts of the case were that reacting to widespread unemployment and economic dislocation and depression, the Minnesota Legislature in 1933 passed the Minnesota Moratorium Law. The object of the above law was to prevent widespread foreclosures on mortgages of homeowners and farmers by postponing their payments until they had a chance to get back on their feet. Part One, section four of the law authorised State Courts to extend the period of redemption from foreclosure sales for such additional time. John Blaisdell and his wife, owners of a lot which was mortgaged to the Home Building & Loan Association, applied to the District Court of Hennepin County for an extension of time so that they could retain ownership of their home. The District Court, however, granted a motion by the creditor Association to dismiss the Blaisdells' petition. The Minnesota Supreme Court reversed. A subsequent decision of the trial Court to extend the period of redemption was sustained by the State Supreme Court. Thereupon, the Home Building & Loan Association appealed to the Supreme Court of the United States. C.J. Hughes spoke on behalf of the majority and while maintaining the judgment of the State Supreme Court made very pertinent observation as to the effect of Emergency as under:-
257. "Emergency does not create power. Emergency does not increase granted power or remove or' diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were, thus, imposed are questions which have always been, and always will be, the subject of close examination under our Constitutional system.
258. While emergency does not create power, emergency may furnish the occasion for the exercise of power. "
259. Mr. Justice Sutherland gave dissenting opinion and inter alia made the following observation:
260. "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all time, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of Government. Such a doctrine leads directly to anarchy or despotism."
261. ((iii) Woods v. Cloud W. Miller Co. Supreme Court of the United States (1948) 333 U.S. 138=68 S.Ct. 421=92 L.Ed. 596:
262. In the above case the relevant facts were that the Congress, utilising the war power, passed the Housing and Rent Act of 1947 to alleviate the inflationary consequences of a widespread housing shortage resulting from curtailed construction during World War 11. The above legislation established a maximum rent level on housing in various "defence-rental areas". It appears that after the enforcement of the above Act, the Cloyd W. Miller Company violated the above Act by demanding 40 per cent. and 60 per cent. rent increase from their Cleveland, Ohio tenants. Thereupon, Tighe Woods, the Housing Expediter, exercised his authority under section 206(a) to seek a Court order enjoining these violations of the aforesaid Act. The District Court held that the Act was unconstitutional., principally on the ground that it transcended the notion of timeliness inherent in a legitimate exercise of the war power. Against the same appeal was taken directly to the Supreme Court, which was allowed. Mr.Justice Dougles delivered the opinion of the Court. He reaffirmed the dictum laid down in the case of Hamilton v. Kentucky Distilleries and Warehouse, Co. (251 U.S. 146) that the war power does not necessarily end with the cessation of hostilities. He inter alia opined as under:-
263. "We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power -can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. There are no such implications in today's decision. We deal here with the consequences of a housing deficit greatly intensified during the period of hostilities by the war effort. Any power, of course, can be abused. But we cannot assume that Congress is not alert to its Constitutional responsibilities. And the question whether the war power has been properly employed in cases such as this is open to judicial inquiry."
264. Whereas Mr.Justice Jackson, while concurring with the above view, recorded separate note, wherein he inter alia emphasised that the war power cannot be indefinitely prolonged by keeping legally alive a state of war that had in fact ended. The relevant observations read as follows:-
265. "I think we can hardly deny that the war power is as valid a ground for federal rent control now as it has been at any time. We still are technically in a state of war. I would not be willing to hold that war powers may be indefinitely prolonged merely by keeping legally alive a state of war that had in fact ended. I cannot accept the argument that war powers last as long as the effects and consequences of war for if so they are permanent--as permanent as the war debts. But I find no reason to conclude that we could find fairly that the present state of war is merely technical. We have armies abroad exercising our war power and have made no peace terms with our allies not to mention our principal enemies. I think the conclusion that the war power has been applicable during the lifetime of this legislation is unavoidable."
(iv) ?????? Korematsu v. United States Supreme Court of the United States. (1944) 323 U.S. 214=65 S.Ct. 193=89 L.Ed. 194:
266. In the above case the facts were that in March, 1942, Congress passed legislation empowering the President by executive order and cabinet or military officers under his direction to restrict movement or residence in any designated military areas or war zone where he felt that such restriction was necessary to national security. Amid growing fears that an invasion of the West Coast was imminent, following the attack on Pearl Harbor the preceding December, and lurking suspicions about the loyalty of tens of thousands of Japanese-Americans clustered along the coast, President Roosevelt by an executive order declared that the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defence material, national defence premises and national defence utilities made applicable the above restriction to the people of Japanese ancestry, citizens and aliens alike. These restrictions ranged from the imposition of curfews to forced removal to "relocation centres" much further inland. The case before the Supreme Court arose out of Execution Order No.34 issued by General Dewitt, the Commanding General of the Western Command, in May 1942, barring all persons of Japanese descent from the "military area" of San Leandro, California. Following his failure to leave the "military area" where his home was located, the appellant Toyosaburo Korematsu, an American citizen of Japanesee ancestry, was convicted of violating the act passed by Congress making it unlawful to act contrary to restrictions placed on any military area or zone. The United States Circuit Court of Appeals affirmed the conviction of the appellant. Mr.Justice Black spoke for the majority, with whom Mr .Justice Frankfurter concurred with, maintained the above conviction and observed as under:-
267. "We uphold -the exclusion order as of the time it was made and when the petitioner violated it. * * *In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens.* * *But hardships are part of war, and war is an aggregation of hardships y All citizens alike, both in and out of uniform, feel the impact of war in) greater or lesser measure. Citizenship has its responsibilities as well its privileges, and in time of war the burden is always heavier. compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile
268. ? forces, the power to protect must be commensurate with the threatened danger.!
269. Whereas, Mr. Justice Roberts, MrJustice Murphy and Mr.Justice Jackson recorded their dissenting notes. It may be instructive to reproduce the following extracts from the opinion of Mr.Justice Jackson:
270. "I should hold that a Civil Court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The Courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they
271. ? cease to be Civil Courts and become instruments of military policy.
272. .Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lend people to rely on this Court for a review that seems to me wholly delusive??????????????????????????????????????????.. My duties as ? a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention programme was a reasonable military necessity. I do not ? suggest that the Courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner."
29. It will not be out of context to refer at this juncture two cases of Indian jurisdiction referred to by the learned counsel for the parties and the learned ? counsel appearing as amicus curiae.
(i) Pran Nath Lekhi v. Union of India and others (AIR 1977 Delhi 167):
273. 1n the above case a Division Bench of the DOM High Court decided two points, firstly, that under clause (1) of Article 352 of the Indian Constitution, satisfaction of the President to impose emergency is final and conclusive and is not justiciable in a Court of law. Secondly, on account of approval of the Proclamation by resolutions of Houses in Parliament in terms of clause (2) of Article 352, the Proclamation does not cease to be a proclamation and that the resolutions of the Houses of the Parliament approving the Proclamation issued under clause (1) of Article 352 only result in sanctifying the Proclamation made by the President.
(ii) ??????? S.R. Bommai and others etc. etc. v. Union of Indian and others etc. etc.
274. ??????????? (AIR 1994 SC 1918): ,.,
275. The above case was decided by a Bench of Indilpn Supreme Court comprising nine learned Judges. In the aforesaid case the facts were that the President of India by the Proclamations under Article 356 of the Indian Constitution dislodged the six Provincial Governments after fresh elections in the Centre which were won by another political party than the political parties which were manning the above six Provinces. The Supreme Court of India was seized of the question as to the scope of Article 356 of the Indian Constitution (which corresponds to Article 234 of our Constitution), whereby the President has been authorised on receipt of a report of a Governor of a Province or otherwise and on being satisfied that a situation has arisen in which the Government of a Province cannot be carried on in accordance with the provisions of the Constitution, the President may by Proclamation assume the powers mentioned therein. Most of the learned Judges recorded their separate reasons. The above case inter alia laid down as follows:-
(i) ???????? The mere parliamentary approval of the Proclamation does not have the effect of excluding judicial review to the extent permissible;
(ii) ??????? the judicial review is permissible on the grounds of illegality, irrationality and mala fide;
(iii) ?????? when the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which shows that the Government cannot be carried on in accordance with the provisions of the Constitution;
(iv) ?????? the power conferred by Article 356 of the Constitution is a conditional power. It is not an absolute power to be exercised in the discretion of the President.
276. The condition is the formation of satisfaction which involves an obligation to consider which of the several steps specified in sub-clauses (a), (b) and (c) should be taken and to what extent.
277. It may be observed that behalf of Kuldip Singh, J. and for himself and with whom S. Ratnavel Pandian, J. concurred with, concluded as follows:-- ?????
278. "Our conclusions, therefore, may be summarised as under:
279. The validity of the Proclamation issued by the President under Article 356(1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power. When a prima facie case is made out in ? the challenge to the Proclamation, the burden is on the Union Government to prove that the relevant material did in fact exist. Such material may be either the report of the Governor or other than the report.
280. II. ???????? Article 74(2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction.
281. III. ?????? When the President issues Proclamation under Article 356(1), he may exercise all or any of the powers under sub-clauses (a), (b) and (c) thereof. It is for him to decide which of the said powers he will exercise, and at what stage, taking into consideration the exigencies of the situation.
282. IV. ?????? Since the provisions contained in clause (3) of Article 356 are intended to be a check on the powers of the President under clause (1) thereof, it will not be permissible for the President to exercise powers under subclauses (a), (b) and (c) of the latter clause, to take irreversible actions till at least both the Houses of parliament have approved of the ?? proclamation. It is for this reason that the President will not be justified in dissolving the Legislative Assembly by using the powers of the Governor under Article 174(2) (b) read with Article 356(l)(a) till at least both the Houses of Parliament approve of the Proclamation.
283. V. ??????? If the Proclamation issued is held invalid, then notwithstanding the fact that it is approved by both Houses of the Parliament, it will be open to the Court to restore the status quo ante to the issuance of the Proclamation and hence to restore the Legislative Assembly and the Ministry.
284. V I. In appropriate cases, the Court will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless. However, the Court will not interdict the issuance of the Proclamation or the exercise of any other power under the Proclamation.
285. VII. ????? While restoring the status quo ante, it will be open for the Court to mould the relief suitably and declare as valid actions taken by the President till that date. It will also be open for the Parliament and the Legislature of the State to validate the said actions of the President.
286. VIII. Secularism is a part of the basic structure of the Constitution. The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.
287. IX. ?????? The Proclamation dated 21-4-1989 and 11-10-1991 and the action taken by the President in removing the respective Ministries and the Legislative Assemblies of the State of Karnataka and the State of Meghalaya challenged in Civil Appeal No.3645 of 1989 and Transfer Cases Nos.5 and 7 of 1992 respectively are unconstitutional. The Proclamation dated 7-8-1988 in respect of State of Nagaland is also held unconstitutional. However, in view of the fact that fresh elections have since taken place and the new Legislative Assemblies and Ministries have been constituted in all the three States, no relief is granted consequent upon the above declarations. However, it is declared that all actions which might have been taken during the period the Proclamation operated, are valid. The Civil Appeal No.3645 of 1989 and Transfer Cases Nos.5 and 7 of 1992 are allowed accordingly with no order as to costs. Civil Appeals Nos. 193-194 of 1989 are disposed of by allowing the writ petitions filed in the Gauhati High Court accordingly but without costs.
288. X. ??????? The Proclamation dated 15th December, 1992 and the actions taken by the President removing the Ministries and dissolving the Legislative Assemblies in the States of Madhya Pradesh, Rajasthan and Himachal Pradesh pursuant to the said proclamation are not unconstitutional. Civil Appeals Nos.1692, 1692-A 1692-C, 4627--30 of 1993 are accordingly allowed and Transfer Cases Nos.8 and 9 of 1992 are dismissed with no order as to costs."
30. 1 may now refer to the contentions of the learned Attorney-General that there are three types of Emergencies contemplated under the Constitution, namely, national emergency under clause (1) of Article 232, emergency under Article 234 on account of failure of Constitutional machinery in a Province and financial emergency under Article 235 of the Constitution. He reiterated that the type of emergency under Article 232 i.e. National Emergency cannot be subject to judicial review, which according to him, has been the consistent view of the superior Courts in Indo-Pak. He has referred to the following case-law:-
289. 0) ???????? Mir Abdul Ba i Baloch v. Government of Pakistan and others (PLD
290. ??????????? 1968:
291. The above judgment has been referred to by almost all the learned counsel for the parties. An extract thereof has already been quoted hereinabove in para. 22. In the above case, the appellant was detained by the Deputy Commissioner, Karachi, under Rule 32 (1)(b) of the Defence of Pakistan Rules, 1965. He filed a Constitution Petition without success in the erstwhile High Court of West Pakistan. Then an appeal with the leave of this Court was filed. His appeal was dismissed. Hamood-ur-Rehman, J. (as he then was) inter alia dilated upon the scope of clause (1) of Article 30 of the late Constitution of 1962 (which authorised the President to issue Proclamation of Emergency) as follow:-
292. "In any event, even assuming that the immediate cause which gave rise to the issue of. the Proclamation was the imminent danger of being threatened by war, no clear demarcation is possible of what is or what is not necessary for meeting that emergency. Internal disorder, sabotage behind the lines, prejudicial acts threatening or disturbing law and order within the country may all have far-reaching effects on the measures needed to be taken for effectively meeting the threat or danger of war. It cannot, therefore, be said that the maintenance of the security or the economical life of Pakistan is not a matter having any bearing on the measures necessary for meeting the emergency created by the imminent danger of war. In such a situation threats of breaches of law and order or dangers to internal security may be more important for keeping up the morals of the people so necessary for any efficient prosecution of war efforts and it is not difficult to comprehend that the prevention of such a pernicious situation might well be beyond the power of the Provincial Government to control. It cannot, therefore, be said that although the emergency had been lawfully proclaimed (this is not disputed), the President had no power to make Ordinance to meet that emergency in the fullest measure."
293. As regards the appellant's contention that since the hostility had ceased the President should revoke the Proclamation, he opined as follows:-
294. "The next contention advanced on behalf of the appellant is that since clause (3) of Article 30 of the Constitution requires that the President shall, when he is satisfied that the grounds on which he has issued a Proclamation of Emergency have ceased to exist, revoke the Proclamation, the President was bound to do so as hostilities ceased and the Tashkent Declaration was announced. If he has not 4one so, the appellant contends the High Court should declare the Proclamation as revoked. This argument is wholly misconceived, for, it is the President who has to be satisfied that the grounds on which he issued the Proclamation have ceased to exist. It is not for the Courts to substitute their satisfaction for the satisfaction of the President. In any event, it cannot be said that merely because hostilities have ceased, the emergency is also at an end. This is a purely political question which is outside the competence of the Courts to decide, for, the declaration of war and peace are within the exclusive competence of the executive Government of the Country. In such matters the Courts speak in the same voice as the Chief Executive of the State, for, these are not questions which are amenable to judicial determination. No Court can give a declaration that a state of war has ceased to exist when the Chief Executive does not say so."
(ii) ??????? M. M. Mansoor Ali v. Arodhendu Shekhar Chatteriee PLD 1969 SC ? 37:
295. In the above case the facts were that on account of arrears of education cess amounting to Rs.8,797.60 against respondents Nos. 1 and 2, a building in Khulna Municipal Committee belonging to respondent No.2 was sold on 28-7-1960 and confirmed on 17-11-1960 in favour of the purchaser, M.M. Mansur Ali, the appellant. The certificate debtors moved an application to the certificate officer under section 23 of the Public Demands Recovery Act to set aside the sale, which was dismissed. On appeal, the Additional Deputy Commissioner set aside the sale but subsequently on revision filed by the appellant the sale was upheld by the Commissioner and finally in a further revision by the certificate debtors, it was affirmed by the Board of Revenue on 22-9-1964, It seems that on 2-2-1966 a title suit was instituted by the certificate debtors through their duly constituted attorney, who was a resident at Khulna, for declaration that the sale was void and fraudulent and as such was liable to be set aside. On an objection taken by the appellant, he was impleaded as one of the defendants. He raised the plea that the suit was not maintainable by the plaintiffs/respondents who were alien enemies. The matter came up for hearing before this Court by way of a petition for leave. Leave was granted to examine, whether in the existing circumstances when the declaration, was made on 6-9-1965 that Pakistan was at war with India had not been withdrawn, although hostilities had ceased after 23rd September, 1965, the state of war could be considered to have terminated so as to avoid the effect of section 83(2), Civil Procedure Code. On the above question this Court recorded the following finding:
296. "In the present case the question whether the plaintiff-respondents who are admittedly nationals and residents of Bharat are alien enemies or not depends on the answer to the question whether we are at war with India and whether India is an enemy country. This, however, is a delicate political question, which, as a matter of State policy lies in the domain of the Executive Government and the Courts need not answer it. One can take notice of the physical facts bearing on the point which are that soon after the attack by India on Pakistan on the 6th of September, 1965, the President of Pakistan declared that we were at war with India and a state of Emergency was proclaimed. There has since been no revocation of that declaration but there is also the fact that hostilities came to an end by the announcement of the cease-fire declaration in the Security Council and later the warring parties were brought to the conference-table at Tashkent by the good offices of the Russian Government where once again a declaration was made acknowledging the end of belligerency between Pakistan and Bharat and an announcement was made that efforts would be made to bring about a peaceful settlement of all outstanding disputes. But whether normalization of relations between the two countries has, in fact, been effected or not, is a matter of which the Government is the best Judge and it alone can say as to how we stand against India in terms of belligerency i.e., whether we are at war with it conventionally or otherwise. In our view this is a purely political question, of which the answer must be supplied by the Government concerned. "
297. After having held as above reference was made to para. 18 of Volume 39 of the Halsbury's Laws of England, Third Edition under the caption "existence of a state of war" and the case was remanded to the trial Court with the direction to issue a notice to the Government Pleader, who will convey to the Court the Government view point on the above question raised after getting necessary instructions from the relevant quarters.
298. In addition to the above cases, the learned Attorney-General has referred to the case of Malik Ghulam Jilani v. Deputy Commissioner, Karachi and others PLD 1969 Karachi 253; the case of Hussain Naqi and another v. The District Magistrate, Lahore and 4 others PLD 1973 Lah. 164; the case of Malik Muhammad Suleman, M.N.A. v. Islamic Republic of Pakistan through Secretaries of the Ministry of Home Affairs, Ministry of Law and Parliamentary Affairs, Islamabad and 2 others PLD 1976 Lahore 1250; and the case of Niaz Ahmed Khan v. Province of Sindh and others PLD 1977 Karachi 604.
299. In the above first case a Division Bench of the erstwhile High Court of West Pakistan at Karachi, while construing Article 30 of the late Constitution of 1962, held that the satisfaction of the President as envisaged in above Article for promulgating order of Emergency was his subjective satisfaction and the ground, whether such a situation existed or not, could not be gone into by a Court of law. It was further held that the requirement of the Constitution that for the satisfaction as to the situations contemplated in Article 30(1)(a) or (b) and Article 30(2), it was the President alone, who was the sole Judge. In the above case the petitioner was detained under the Defence of Pakistan Rules, which action was assailed ? rough a Constitution Petition.
300. In the second case the facts were that the District Magistrate, Lahore, had taken actions under the West Pakistan Press and Publications Ordinance (XXX of 1963) against certain publications, which actions were assailed through Constitution Petitions. In the course of arguments the validity of the Proclamation of Emergency issued under Article 139 of the late Interim Constitution of Pakistan, 1972 was assailed. In that context it was observed by a Division Bench of the Lahore High Court that it was not competent for an individual or the Court to question the validity of such Proclamation.
301. In the third case the facts were that the petitioner was being tried before a Magistrate at Lahore for an offence under Rule 45 of the Defence of Pakistan Rules on the allegation that he had delivered an objectionable speech. His case was transferred to the Special Tribunal constituted under the Defence of Pakistan Rules. A Constitution Petition was filed, in which besides attacking the impugned trial, the validity of the imposition of Emergency by the President of Pakistan on 23-11-1971 was also assailed. A Division Bench of the Lahore High Court headed by the then C.J. Sardar Muhammad Iqbal in the discourse of the judgment highlighted the factum that the Constitution in Part X (Articles 232 to 237) provides for three kinds of Emergencies for abnormal situations which call for a departure from the normal governmental functions of the country viz.
(a) ??????? the Emergency under Article 232 due to external or internal aggression which was termed as National Emergency;
(b) ??????? failure of the Constitutional machinery in a State (Article 234); and
(c) ??????? Financial Emergency (Article 235).
302. It was inter alia observed that the actual occurrence of war or any internal violence was not necessary to justify a Proclamation of Emergency by the President. It was also observed that the question, as to whether we were at war with a particular country conventionally or otherwise, was purely a political question of which the answer must be supplied by the Government concerned. It was further observed that in such matters the Courts speak in the same voice as the Chief Executive of the State, for these are not questions which are amenable to judicial determination and that no Court can give a declaration that a state of war has ceased to exist when the Chief Executive does not say so. Inter alia reliance was placed on the judgment of this Court in the case of Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14.
303. ??????????? In the last case the petitioner, who was a practising Advocate, filed a Constitution Petition in the High Court of Sindh challenging the imposition of Martial Law in Karachi and Hyderabad Divisions and all actions taken thereunder, which was heard by a Full Bench comprising the then Hon'ble Chief Justice and four companion Judges. During the course of arguments the imposition of Emergency was also assailed. In that context it was observed that ? the Executive could know the requirement of the situation and it could know how long Proclamation of Emergency to continue and what restrictions to be placed on the Fundamental Rights of the citizens during the pendency of the Emergency. It was further held that the President's power to issue or revoke Proclamation of Emergency was not open to judicial scrutiny.
31. Ch. Muhammad Farooq, learned Attorney-General has also referred to a number of Indian judgments to reinforce his above submission that this Court cannot examine the validity of the Proclamation which include the case of State of Bombay v. Virkumar Gulabchand AIR 1952 SC 335, the case of Makhan Singh Tarsikka v. The State of Punjab AIR 1964 SC 381, the case of P.L. Lakhanpal v. Union of India AIR 1967 SC 243, the case of Ghulam Sarwar v. Union of India and others AIR 1967 SC 1335, the case of Muhammad Yaqub and others v. State of Jammu and Kashmir AIR 1968 SC 765 and the case of Union of India and others v. Bhanudas Krishna Gawde and others (1977) 1 SCC 834.
304. In the first case the question before the Indian Supreme Court was, whether turmeric was a "foodstuff" within the meaning of clause (3) of the Spices (Forward Contracts Prohibition) Order, 1944, read with section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946. The respondent was charged with having contravened the above clause (3) and was convicted and sentenced by the trial Court inasmuch as he was awarded three months' imprisonment, but he was acquitted by the Sessions Court on appeal, which was maintained by the High Court in revision. Then the matter was taken up to the Supreme Court by the State. The Indian Supreme Court, while maintaining the above acquittal judgment, pointed out that it was noteworthy that the term which was under consideration in the cases referred to therein occurred in a war-time measure, namely, a Proclamation promulgated on 4-8-1915 the date on which the First World War started. It was further observed that there was authority for the view that war-time measures which often had to be enacted hastily to meet a grave pressing national emergency. in which the very existence of the State was at stake should be construed more liberally in favour of the Crown or the State than the peace time legislation.
305. In the second case the facts were that the appellants in 26 criminal appeals which were brought before the Constitutional Bench of the Indian Supreme Court were detained by the Punjab and Maharashtra States under Rule 30(1)(b) of the Defence of India Rules made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India Rules, 1962. They applied to the Punjab and Bombay High Courts respectively under section 49(1)(b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained. They also assailed the validity of the above provision of the Defence of India Rules, under which they were detained. The question before the Supreme Court was, as to whether in presence of the Proclamation of Emergency the Supreme Court was competent to entertain the above Constitution Petitions. In that context the following observations were made:-
306. "The right to challenge the validity of a statute on the ground that it contravenes the fundamental rights of the citizens has accrued to the citizens of this country only after and as a result of the provisions of the Constitution itself, and, so, there can be no doubt that when in the present proceedings the detenus seek to challenge the validity of the impugned statutory provision and the Rule, they are invoking their fundamental rights under the Constitution. If section 491 is treated as standing by itself and apart from the provisions of the Constitution, the plea raised by the detenus cannot be entertained in the proceedings taken under that section, it is only when the proceedings taken under the said section are dealt with not only in the light of section 491 and of the rights which were available to the citizens before 1950, but when they are considered also in the light of the fundamental rights guaranteed by the Constitution that the relevant plea can be raised. In other words, it is clear that the content of the detenu's right to challenge the legality of his detention which was available to him under section 491(1)(b) prior to the Constitution, has been enlarged by the fundamental rights guaranteed to the citizens by the Constitution, and so, whenever a detenu relies upon his fundamental rights even in support of his petition made under section 491(1)(b) he is really enforcing the said rights and in that sense, the proceedings inevitably partake of the character of proceedings taken by the detenu for enforcing these rights; that is why the argument that Article 359(1) and the Presidential Order issued under it do not apply to the proceedings under section 491(I)(b) cannot be sustained. The prohibition contained in the said Article and the Presidential Order will apply as much to proceedings under section 491(l)(b) as to those under Article 226(1) and Article 32(1)."
307. In the third case the petitioner, who was detained under clause (b) of sub-rule (1) of Rule 30 of the Defence of India Rules, challenged the detention order through a Constitution Petition, in which inter alia it was contended that the Proclamation of Emergency issued by the President on 26-10-1962 under Article 352(1) when there was armed conflict between India and China, was not valid for the reason that the same did not state the factum that the President was satisfied in terms of the above provision of the Constitution. The above contention was repelled by the Indian Supreme Court and it was held that the above Article required only a declaration of emergency threatening the security of India by one of the causes mentioned therein and that there was no requirement that the President should state that he was satisfied. It was further held that the declaration shows that the President must have satisfied himself about the existence of emergency or in these matters the rule that official acts are presumed to have been properly performed, applies and there is nothing proved by the petitioner to displace that presumption. It was also contended that the continuance of Emergency which teas declared over three years ago was a fraud on the Constitution but the above contention was also rejected and it was held that the Proclamation of Emergency could be revoked in terms of clause (2) of Article 352 of the Indian Constitution.
308. In the fourth case the petitioner, a Pakistani national who entered India without any travel documents, was arrested on 8-5-1964 in New Delhi by the Customs Authorities under section 135 of the Customs Act, 1962. On 9-5-1964, he was ordered to be enlarged on bail. On 18-5-1965 he was ordered to be released. When he was about to be released from jail, a detention order was served on him by the Central Government under section 3(2)(g) of the aforesaid Act on the basis of allegation that police investigation was in progress in respect of a case of conspiracy to smuggle gold, of which he was a member. On 29-5-1965, he was convicted by a Magistrate, 1st Class, New Delhi, of an offence under the Customs Act and was sentenced to undergo sentence for a period of nine months and to pay a fine of Rs.2,000. The appeal filed by him to the Sessions Judge against his above conviction was dismissed. The petitioner underwent imprisonment and also paid the fine amount. However, before his term of imprisonment had expired, the petitioner filed a writ of habeas corpus in the Circuit Bench of the Punjab High Court at New Delhi challenging his detention, which was dismissed. He inter alia filed a petition under Article 32 of the Indian Constitution on 12-5-1966 for issue of a writ of habeas corpus before the Indian Supreme Court. In the above case inter alia it was urged that a declaration of emergency under Article 352 of the Constitution in the year 1962 and the continuance of emergency for four long years after the cessation of hostilities with China was mala fide and was an abuse of power conferred on the President under Part XVIII of the Indian Constitution. The Indian Supreme Court declined to dilate upon the question, whether the Court could ascertain whether the action of the Executive in declaring emergency and continuing it was actuated by mala fide or was abuse of power. It was observed that the above question required a careful research into the circumstances obtaining in our country and the motive operating on the mind of the person in power in continuing the emergency. It was also observed that the expression "grave emergency" in Article 352(1) and the expression "imminent danger" in Article 352(3) showed that the existence of grave emergency or imminent danger was a pre-condition for declaration of emergency, which was a question which was left to the satisfaction of the Executive by the above Article.
309. However, an ingenious distinction between deprivation of fundamental rights by force of a Constitutional provision itself and such deprivation by an ? order made by the President in exercise of power conferred on him under a Constitutional provision was highlighted/made in the majority view in the following terms:-
310. "(16) There is a clear distinction between deprivation of fundamental rights by force of a Constitutional provision itself and such deprivation by an order made by the President in exercise of a power conferred on him under a Constitutional provision. A comparison of the provisions of Article 358 and Article 359 justifies this distinction. Under Article 358, by the force of that Article itself, Article 19 is put out of the way. Article 359(1) does not operate by its own force. The President has to make an order declaring that the right to move a Court in respect of a fundamental right or rights in Part III is suspended. He can only make an order which is a valid one. An order making an unjustified discrimination in suspending the right to move a Court under Article 14 itself, will be void at its inception. It is a still born order. It cannot be said that this involves an argument in a circle. This argument ignores the distinction between the order and the effect of that order. If the order does not violate Article 14, it can validly take away the right to move the Court to enforce Article 14. So, viewed, the order of the President must satisfy the requirements of Article 14. Mr. Bindra relied upon the decision of this Court in Mohan Chowdhury v. Chief Commissioner, Union Territory of Tripura (1964) 3 SCR 442 at p.451 (AIR 1964 SC 173 at p.177) in support of his argument that the order of the President was untrammelled by the provisions of Article 14. The passage relied upon reads: 'It was also contended that the President's Order of November 3, 1962 is subject to the condition precedent that there is a valid Ordinance and the rules framed or the orders made thereunder are valid. In other words, it is contended that it is open to the petitioner to canvass the validity of the Ordinance. This is arguing in a circle. In order that the Court may investigate the validity of a particular Ordinance or Act of a Legislature, the person moving the Court should have a locus standi. If he has not the locus standi to move the Court, the Court will refuse to entertain his petition questioning the vires of the particular legislation. In view of the President's Order passed under the provisions of Article 359(1) of the Constitution, the petitioner has lost his locus standi to move this Court during the period of emergency as already pointed out. That being so, the petition is not maintainable.' This passage has nothing to do with the validity of the order made under Article 359(1). What this Court said was that, as under the Ordinance the petitioner therein had no right to move the Court to enforce his fundamental right, he had no locus standi to question the validity of the Act, for, he could question the validity of the Act only if he could move the Court in regard thereto. We, therefore, hold that the validity of the President's Order issued under Article 359(1) could be questioned if it infringed the provisions of Article 14 of the Constitution. "
311. In the .fifth case the petitioner was arrested on 11-11-1966 and was detained pursuant to an order passed under Rule 30(1)(b) of the Defence of India Rules 1962. This order was reviewed after the expiry of a period of six months but the detenu was not given any opportunity to submit his case before the reviewing authority. In consequence the detention of the petitioner became illegal after the first period of six months in view of the judgment of the Indian Supreme Court in the case of P.L. Lakhanpal v. Union of India AIR 1967 SC 1507. The State Government after realising this defect cancelled the order dated 11-11-1966 on 3-8-1967 and on the same date a fresh order was passed which was assailed before the Indian Supreme Court. In the above case, it was inter alia contended that since the order under Article 359(1) could solely be made in the context of Emergency, only such fundamental rights could be made unenforceable which had a nexus with the reasons which led to the Proclamation of Emergency. The above contention was rejected by the Indian Supreme Court in the following words:
312. "There is in our opinion no scope for inquiry into the question whether the fundamental right the enforcement of which the President has suspended under Article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbances, for Article 359 posits. It may be necessary for the President to suspend any of the fundamental rights in Part III for the sake of the security of India. There is, thus, a basic assumption in Article 359 that it may be necessary for the President to suspend 'the enforcement of any of the fundamental rights conferred by Part III in the interest of the security of India. If he considers that necessary, it is unnecessary in the face of that basic assumption to inquire whether enforcement of a particular fundamental right suspended by the President has anything to do with the security of India, for that is implicit in Article 359. It follows therefore that it is open to the President to suspend the enforcement of any of the fundamental rights conferred by Part III by an order under Article 359 and this Article shows that wherever such suspension is made it is in the interest of the security of India and no further proof of it is necessary."
313. It was also urged by the petitioner that the President's Order of 11-11-1962 was invalid as it was violative of equality rights conferred by Article 14 of the Indian Constitution. Reliance was placed on the above-quoted observations from the judgment in the case of Ghulam Sarwar (supra). The above contention was also repelled as under:-
314. " ... ...it is difficult to appreciate this reasoning and the distinction on which it is based. It seems to us that if Article 359 is to have any meaning at all and is not to be wiped out from the Constitution an order passed thereunder suspending a fundamental right cannot possibly be tested under that very fundametnal right which it suspends. If that were permissible no order under Article 359 could really be passed. If Article 359 is not to be rendered nugatory, it must be held that an order passed thereunder cannot be tested under the very fundamental right the enforcement of which it suspends. We must, therefore, respectfully differ from the view taken in Ghulam Sarwar's case (1967) 2 SCR 271: (AIR 1967 SC 1335), and hold that an order passed under Article 359(1) cannot be tested with the aid of Article 13(2) under that very fundamental right the enforcement of which it suspends. There is therefore, no force in the first point raised on behalf of the petitioners. "
315. The above majority view in Ghulam Sarwar's case (supra) in which the above distinction was highlighted was overruled.
316. It may be stated that Hidayatullah, J. who was a party to the judgment in the case of Ghulam Sarwar (supra) and who happened to be a party in the aforesaid case of Muhammad Yaqub etc., through a separate note explained his position as to the above observation in Ghulam Sarwar's case.
317. In the above last case, a number of certificated appeals against the orders of the High Courts of Bombay and Karnataka filed by the Union of India against certain orders passed by the aforesaid High Courts and direct Constitution Petitions were filed before the Indian Supreme Court by the detenus/petitioners under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974). The Indian Supreme Court held that the writ petitions were not maintainable in the High Courts of Bombay and Karnataka, were clearly in error in passing the impugned directions which were not warranted by any relevant law including the law relating to the preventive detention of kind with which they were concerned in the cases before them. It was further observed that the detenus or their relations might have been so advised to approach the appropriate Government or other competent administrative authorities invoking their powers under section 5 read with section 12 of the aforesaid Act or other relevant provisions thereof. The Union's appeal was allowed, whereas the detenus' appeals were dismissed and so the petitions.
318. In the discourse of the judgment a distinction was brought out between Articles 358 and 359 as under:-
319. "Thus, the foregoing discussion makes two things perfectly clear:--(1) that Article 359(1) (which makes no distinction between the threat to the security of India by war or external aggression or internal disturbance) is wider in scope than Article 358, (2) that it is not open to anyone either to challenge the validity of any law or any executive action on the ground of violation of a fundamental right specified in the Presidential Order promulgated under Article 359(1) of the Constitution. It would be apposite at this stage to mention that in England in Liversidge v. Anderson and Greene v. Secretary of State for Home Affairs and in India Sree Mohan Chawdhary v. Chief Commissioner, Union Territory of Tripura and Makhan Singh v. State of Punjab the right of any person to challenge any executive action taken during emergency on the ground that it was arbitrary or unlawful has been negatived. In the Liversidge case the following memorable observations made by the House of Lords in the King v. Halliday, Ex parte Zadiq were referred to and relied upon:
320. 'However, precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment namely, national success in the war or escape from national plunder or enslavement. Liberty is itself the gift of the law and may be the law be forfeited or abridged'. "
321. He has also referred to the judgment of the Indian Supreme Court in the case of S.R. Bommai and others etc. etc. v. Union of India and others AIR 1994 SC 1918 which has already been dealt with hereinabove in para.29.
32. Ch. Muhammad Farooq, learned Attorney-General besides citing the above Indian cases, has also referred to some cases of foreign jurisdiction given in the book titled "Comparative Constitutional Law: Cases and Materials" by Harry E. Groves, and some treatises on the question of Emergency power. may first refer to the above case-law:-
(i) The King (At The Prosecution of ZadiQ) v. Halliday (1917 AC 260).
322. In the above case the appellant was a naturalised British Subject of German birth who had been interned by an order made by the Secretary of State on 15-10-1915 under the powers of Regulation 14(B), which was made under the defence of the Realm Consolidation Act, 1914. The House of Lords dismissed the appeal of the above interned naturalised British Subject. A number of Lords gave their separate opinions as to the emergency power. Lord Atkinson made the following famous observation:-
323. "Lord Atkinson. My Lords, I concur .
324. ... ...However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement ??? "
(ii) Liversid e v Anderson and another (19421 AC 206:
325. In this case the appellant was detained by an order made by the Home Secretary on 26-5-1940 under Regulation 18-B of the Defence (General) Regulations, 1939, for his detention. The appellant applied for particulars (a) of the grounds on which the respondent had reasonable cause to believe the appellant to be a person of hostile associations and (b) of the grounds, on which the respondent had reasonable cause to believe that by reason of such hostile associations it was necessary to exercise control over the appellant. The above request was refused by Master Moseley, which order was upheld by the Judge in Chambers. However, he gave leave to appeal to the Court of Appeal. The latter held that the appellant at the present stage was not entitled to any of the particulars he was claiming and, therefore, his appeal was dismissed. Then the matter was brought before the House of Lords. The leading opinion of the House of Lords was rendered by Lord Viscount Maugham. Supporting opinion was given by Lord Wright. The learned Attorney-General has relied upon the above two opinions extensively in order to demonstrate that in case of emergency on account of war or external aggression, the English Courts declined even to enquire from the Home Secretary as to the grounds of detention. Viscount Maugham gave a number of weighty reasons for declining leave which inter alia include as follows:-
326. "To my mind this is so clearly a matter for executive discretion and nothing else that I cannot myself believe that those responsible for the Order in Council could have contemplated for a moment the possibility of the action of the Secretary of State being subject to the discussion, criticism and control of a Judge in a Court of law. If, then, in the present case the second requisite, as to the grounds on which the Secretary of State can make his order of detention, is left to his sole discretion without appeal to a Court, it necessarily follows that the same is true as to all the facts which he must have reasonable cause to believe. "
327. ????????????.
328. ???????????????.
329. These .provisions seem to point to the fact that the Secretary of State will be answerable to Parliament in carrying out duties of a very important and confidential nature."
330. Whereas Lord Wright made the following observations:--
331. "To a large extent the sources of information must be secret. Espionage must be met by counter-espionage. Even to refuse the disclosure may give dangerous hints to the enemy. A hearing in camera is, no doubt, permissible (in particular under section 6 of the Emergency Powers (Defence) Act, 1939), but a hearing in camera, if the public called for full disclosure, would not satisfy the public conscience, and in matters of this delicacy leakage must inevitably take place ? the Court is not merely an appropriate tribunal, but one the jurisdiction of which is unworkable and even illusory in these cases. In my judgment, a Court of law could not have before it the information on which the Secretary acts, still less the background of state craft and national policy which is what must determine the action which he takes on it."
(iii) ?????? Adelaide Company of Jehovah's Witnesses Incorporation v. The Commonwealth (1943) 67 CLR 116:
332. In the above case the question before the High Court of Australia was, whether section 116 of the Constitution of the Commonwealth prevented the Commonwealth Parliament from legislating to restrain the activities of a body, the existence of which was, in the opinion of the Governor-General, prejudicial to the defence of the Commonwealth or the efficient prosecution of the war, if that body was a religious organisation ? Latham, C.J. in his opinion observed that there was, therefore, full legal justification for adopting in Australia the interpretation of section 116 which had, before the enactment of the Commonwealth Constitution, already been given effect to in similar words in the United States. Reference was made to the United States Supreme Court Judgment in the case of Jones v. Opelika, in which the Supreme Court with reference to the Constitutional guarantees of freedom of speech, freedom of press and freedom of religion observed as under:-
333. "They are not absolutes to be exercised independently of other cherished privileges, protected by the same organic instrument'. It was held that these privileges must be reconciled with the right of a State to employ the sovereign power to ensure orderly living 'without which Constitutional guarantees of civil liberties would be a mockery'."
334. Latham, C.J., while repelling the contention that the regulations which made the consequences dependant upon the opinion of the Governor-General were invalid, observed as under:-
335. "In my opinion it is too late to raise this argument ... ...Lloyd v. ? Wallach .. See R. v. Halliday.... ? See also Liversidge v. ? Anderson.
336. The cases cited relate to the liberty of the subject, which has always been a matter of the very highest concern to the law. If a basis in opinion is sufficient to authorize the most grave interference with personal liberty by indefinite imprisonment, namely, imprisonment during the duration of a war, it can hardly be said that such a basis is insufficient to authorize interference - with property. The rights of property, however, important they may be, have never been held in the Courts to be as sacred as the right of personal liberty. In my opinion, therefore, the objection taken to the validity of Regulation 3 as a basis for the operation of the other regulations must be held to fail."
337. Whereas Starke, J. in his opinion made the following observations:-
338. "The Courts must not, of course, forget that those who are responsible for the national security must be the best Judges of what the national security requires, but still in Australia neither the Parliament nor the Governor-General can transcend the Constitution, nor can the Governor-General transcend the powers conferred upon him by the National Security Act, 1939-1040 ... ... ... ... ... .. ... ... ..The matter is entirely one for the discretion of the Executive, regardless apparently, 1xcept by the grace of the' Executive, of obligations to creditors or others or even the interest of persons in property used by or in the interests of a declared body. Any house, premises, or place or part thereof occupied by a body prior to its declaration may, if the Minister so orders, be occupied so long as there is in the house, premises or place or part thereof any property which the Minister is satisfied belonged to, or was used by or on behalf of, or in the interests of, the body."
(iv) In re: Michael Walsh et al. (1942) IR 112 Supreme Court.
339. In which under Emergency Powers Order (No.41 of 1941), dated the 31st December, 1945, the four prosecutors were ordered to be brought before a Military Court established by the Emergency Powers Order (No.41-of--1941), and there to be tried together for the murder of one Michael Devereux. It seems that by the Emergency Powers (No. 139) Order, 1941, dated the 30th December, 1941, under Article 5 it was provided that without prejudice to the proper provisions made by the foregoing Articles of the above Order. if, on any occasion during a trial before a Court to which the above Order applies, the Court considered it proper that it should not be bound by any rule of evidence, whether statutory or at common law, the Court shall not be bound by such rule. It appears that on 31st January, 1942, an application was made on behalf of the above prosecutors who were under trial seeking prohibition against the President and members of the Military Court entertaining or proceeding with a charge against the above prosecutors for the murder of Michael Devereux, which was declined by Sullivan, C.J. of the High Court. The matter was brought before the Supreme Court through an appeal, which was dismissed for the following reasons:- "it was strenuously urged by counsel for the appellants that the Orders in question were manifestly oppressive and unjust to accused persons, and that if this Court refused the relief sought, it would be sanctioning an improper exercise by the Government of. the powers vested in them by the Legislature.
340. In our opinion this contention is based upon a misconception of the duties and functions of the Court. This emergency legislation is of a temporary character, passed for the purpose of securing the public safety and the preservation of the State during a time of national emergency. During such period the duty of determining what provisions are necessary for securing that object is vested in the Government, but every such provision must be laid before each House of the Oireachtas and may be annulled by a resolution passed by either House. Many of the arguments addressed to us would be more fittingly addressed to either house of the Oireachtas when considering the propriety of, and necessity for, the Order in question. They are not matters which can properly be relied upon in a Court of law."
(v) The Australian Communist Party v. The Commonwealth 1(1950-1951)
341. 83 CLR 1 (High Court of Australia):
342. In the above case Dixon, J. referred to .two questions under the Judiciary Act, 1903-1948 to a larger Bench of the Australian High Court on the question of validity of the Communist Party Dissolution Act, 1950. Latham" CT, while upholding the validity of the above Act, made the following observations:-
343. ... the action of the Government in declaring war and of Parliament in adopting that decision and legislating in pursuance of it itself created a defence situation which provided a basis for the legislation. Upon the basis of the recognition of this fact, actually created by the political decision of the Government and Parliament, the Court in its decisions applied a rule that there must be a real and substantial connection between the legislation and the defence situation so created in order that the legislation could be valid, but the Court never considered whether what Germany and Japan had done or might do could be regarded as a danger to Australia so as to warrant legislation under the defence power. The end to be pursued the object to be achieved, namely, winning a particular war--was determined by the Government and Parliament ...
344. ... No distinction can be drawn between defence against external attack and defence against internal attack, which is more insidious than direct external attack and in some respects, because it is often secret, more difficult to combat..."
33. I may now refer to the treatises relied upon by the learned Attorney General:
(i) Basu's Commentary on the Constitution of India, Sixth Edition, Volume, N, wherein the author in Part XVIII under the title "Emergency Provisions" points out as under:-
345. "Whatever be that form of Government, emergent situations are bound to arise in any country, owing to various factors like war, economic or financial breakdown, which call for immediate measures to be taken by the Government to safeguard the stability of the country or the safety of the citizens, which in order to be adequate, must be different from or in addition to the normal system of administration. ?????????????????????????????????????????????????????????????..
346. A satisfactory solution of the problem can therefore be had only if extraordinary powers are available to the Government to meet such emergencies with the least encroachment upon the rights and liberties of the citizens."
347. The author also points out that in some countries including the U.S.A., though the Constitution does not contain exclusive or elaborate provisions to deal with emergencies, extraordinary powers have been inferred from the 'normal provisions by judicial interpretation. Whereas in a country with an unwritten Constitution, such as the U.K., emergency powers are conferred by statutes, apart from common law. The author has drawn the attention that in modern times the powers of the Executive, in the United Kingdom, are enlarged not by the Royal Prerogative, but by legislation by Parliament, such as the Defence of the Realm Act, 1914-15 or the Emergency Powers (Defence) Acts, 1939-40, which confer large discretionary powers in the Executive to meet the emergency which include:
348. "(a) ?????? The power to detain a subject of hostile association, without trial.
(b) ??????? To regulate essential supplies and services in order to ensure their equitable distribution.
(c) ??????? Acquisition or requisitioning of private property.
(d) ??????? Temporary employment of members of the armed forces in urgent works of national importance."
349. The author also highlights that U.K. Parliament has similarly empowered the Executive to take adequate steps to meet with an internal disturbance which threatens the essentials of life, by passing permanent Acts. He then deals with the Australian, German and French Constitutions to highlight that the same contain provisions to meet the emergency.
(ii) American Jurisprudence Second Edition, Volume 16: in which under paras. 315 and 316 the author under the titles "Particular executive actions not subject to judicial review" and "Limitations as respects legislature; encroachment (judicial legislation") respectively has highlighted that the judiciary will not encroach upon the executive and the legislative functions in respect of the items mentioned therein. Reliance was particularly placed by the learned Attorney-General on the following observations contained in para. 315:-
350. "315. Particular executive actions not subject to judicial review.--In accordance with the general rule that the judiciary will not encroach upon the executive, the Courts will not interfere with executive action ? relating to executive, administrative, political, military, naval, international, or territorial matters including land boundaries or surveys and disposition of public lands, or matters relating to immigration, internal revenue, the enforcement of law, commutation of sentences or grants of pardons, or the appointment, compensation, suspension or removal of officers or employees."
(iii) American Constitution 7th Edition, page 72:
351. Wherein under the caption "Power of Judicial Review against Governmental Actions" by William B Lockhart, at page 27 of the Book, while discussing the power of judicial review against the actions of the Government, the author has observed as follows:--
352. "Do the provisions of section 4, Article IV bring about these strange, far-reaching and injurious result? That is to say, do the provisions of that Article obliterate the division between judicial authority and legislative power upon which the Constitution rests? In other words, do they authorize the judiciary to substitute its judgment as to a matter purely political for the judgment of Congress on a subject committed to it and, thus, overthrow the Constitution upon the ground that thereby the guarantee to the States of a Government republican in form may be secured, a conception which after all rests upon the assumption that the states are to be guaranteed a Government republican in form by destroying the very existence of a Government republican in form in the Nation?
353. We shall not stop to consider the text to point out how absolutely barren it is of support for the contentions sought to be based upon it since the repugnancy of those contentions to the letter and spirit of that test is so conclusively established by prior decisions of this Court as to cause the matter to be absolutely foreclosed."
(iv) ?????? A Treatise on the Constitution Limitations which rest upon the legislative power of the States of the American Union by Thomas M ? Cooley, Eighth Edition, Vol. l: ? in which the author under the caption "Inquiry into Legislative Motives" has observed as under:-
354. "From what examination has been given to this subject, it appears that whether a statute is Constitutional or not is always a question of power; that is, a question whether the Legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the Constitutional limits and observed the Constitutional conditions. In any case in which this question is answered in the affirmative, the Courts are not at liberty to inquire into the proper exercise of the power. They" must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the Legislature when the act was passed."
355. The author has also referred to certain decided cases, in which the Courts held that they were not at liberty to inquire into the motives of the Legislature. They could only examine into its power under the Constitution. It may be pertinent to mention that the learned Attorney-General has relied upon particularly on the following observations contained in the above treatise:-
356. "It is ... argued, if a lawful power may be exerted for an unlawful purpose, and thus, by abusing the power, it may be made to accomplish a result not intended by the Constitution, all limitations of power must disappear, and the grave function lodged in the judiciary, to confine all the departments within the authority conferred by the Constitution, will be of no avail. This, when reduced to its last analysis, comes to this: that because of particular department of the Government may exert its lawful powers with the object or motive of reaching an end not justified, therefore, it becomes the duty of the judiciary to restrain the exercise of a lawful power wherever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that, under our Constitutional system, the abuse by one department of the Government of its lawful powers is to be corrected by the abuse of its powers by another department. The proposition, if sustained, would destroy all distinction between the powers of the respective departments of the Government, would put an end to that confidence and respect for each other which it was the purpose of the Constitution to uphold, and would, thus, be full of danger to the permanence 'of our institutions... It is, of course true, as suggested, that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the Government, where a wrong ? motive or purpose has impelled to the exertion of the power, that abuse of a power conferred may be temporarily effectual. The remedy for this, however, lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the exercise of a lawful power."
(v) I4alsbury's Law of England 4th Edition, Vol. 49: in which under para. 101 under the caption "Existence of a state of war", the following observations have been made:-
357. "At common law no state of war exists between the United Kingdom and a foreign State until there has been a formal declaration of war by the Crown or hostilities have been commenced by the authority of the Crown. Similarly a war may be terminated only by the authority of the Crown, and this is usually effected by a treaty of peace and announced to the nation by proclamation or Order in Council. A certificate of the Secretary of State for Foreign and Commonwealth Affairs to the effect that the Crown is still at war with a foreign State is conclusive evidence that the State of war is not at an end. During the course of a war with a foreign State all commerce and intercourse between British Subject resident in British territory and the subjects of that State, or with persons residing there, is prohibited except under licence. Judicial notice will be taken of the existence of a state of war between this country and any other, when that is the fact, even after the termination of hostilities."
(vi) Corpus Juris Secundum, Vo1.29-A: in which under the caption "Emergency", the same has been defined as under:-
358. "Although the term has been defined as meaning the act of emerging, it is more commonly used and generally understood to mean a sudden occurrence or exigency, implying imminent danger which leaves no time for deliberation, or a sudden or unexpected necessity requiring speedy action; and, as a generalization, it is a sudden or unexpected event which creates a temporarily dangerous condition usually necessitating immediate or quick action."
(vii) Cases and Materials on International Law. Second Edition by Martin Dixon and Robert McCorauedule. in which the authors have referred to the United Nation's protection of human rights particularly Article 1, Article 55, Article 56, Article 68, Article 76 etc. Then they referred to International Covenants of Civil and Political Rights, 1966, which were entered into force on 31-3-1976 and were ratified by 129 States by 1-5-1995. Articles 3 and 4 are pertinent to the controversy at issue, which read as under:-- ,
359. "Article 3:
360. The State parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
361. Article 4:
(1) ??????? In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
(2) No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
(3) ??????? Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary on the date on which it terminates such derogation. "
362. The authors have also referred to original human rights protection, namely, European and American. Article 10 and Article 15 of the European Convention on Human Rights under the caption "Convention for the protection of human rights and fundamental freedom, 1950", provide as under:-- .
363. "Article 10:
(1) ??????? Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) ??????? The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary ....
364. "Article 15:
(1) ??????? In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
(2) ??????? No derogation from Article_2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
(3) ??????? Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reason therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again. being fully executed."
365. Whereas American Convention on Human Rights, 1969 also contains similar guarantees as provided in the above European Convention. However, it will be advantageous to reproduce Articles 21 and 27 of the same, which read as follows:-
366. "Article 21:
(1) ??????? Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.
(2) ??????? No one shall be deprived of his property' except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.
(3) ??????? Usury and any other form of exploitation of man by man shall be prohibited by law.
367. Article 27:
(1) ? In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the .present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other publications under international law and do not involve discrimination on the ground of race, colour, sex, language, religion, or social origin.
(2) ??????? The foregoing provision does not authorize any suspension of the following Articles: Article 3 (right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 16 (Freedom from Slavery), Article 9 (Freedom from ex post facto laws), Article 12 (Freedom of conscience and religion), Article 17 (Rights of the family), Article 18 (right to a name), Article 19 (Rights of the child), Article 20 (Right to natio0ajity), and Article 23 (Right to participate in Government), or of the judicial guarantees essential for the protection of such rights.
(3) ??????? Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension and the date set for the termination of such suspension. "
368. The authors have also referred to a decision of .European Court of Human Rights, namely, in the case of Brannigan and McBride v. United Kingdom (ECHR Series A; (1993) No.258-B). In the above case two applicants had been detained for over four days by the police in Northern Ireland under the provisions of the United Kingdom Prevention of Terrorism (Temporary Provisions) Act, 1984. The United Kingdom Government before the European Court of Human Rights conceded that it had breached Article 5(3) and (5) of the ECHR as the applicants were not brought promptly before a Judge after their detention. The issue was, whether the derogation to the ECHR by the United Kingdom exonerated it of any breach. The European Human Rights Court observed as under:-
369. "The Court recalls that it falls to each Contracting State, with its responsibility for 'the life (its) nation', to determine whether that life is threatened by a 'public emergency' and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international Judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. The United Kingdom judgment of 18th January, 1978, Series A, No.25, pp.78-79. para.207).
370. Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the 'extent strictly required by the exigencies' of the crisis. The domestic margin of appreciation is, thus, accompanied by a European supervision (ibid). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation. "
371. Incidentally, it may be stated that the above case has also been relied upon by the other learned counsel.
(viii) Constitutional and Administrative Law by Wade and Bradley, 11th Edition: in which the authors have in Chapter 25 under the title "Emergency Powers", while dealing with grave national emergency point out that under the European Convention on Human Rights, Article 15, it is permissible to a member State to take measures derogating from its obligations under the convention 'in time of war or other public emergency threatening the life of the nation' , but even under such circumstances no derogation is permissible from Article 2 which protects the right to life except in the cafe of death resulting from lawful acts of war, Article 3 which prohibits the use of torture, Article 4(1) which prohibits slavery and Article 7 which bars retrospective criminal law. The authors then observed as under:-
372. "Thus, even in grave emergencies there are limits beyond which a State may not go. This chapter examines the role of the armed forces and the use of statutory emergency powers during war and peace, and includes, an account of recent anti-terrorist legislation. Emphasis will be both on the increased powers of the State in emergencies and on the continuing limits on State action."
(ix) ?????? Manual of Public International Law, 1968 Edn.. Edited by Max Sorensen: wherein the author has observed as follows as to the new concept of war:-
373. "Contemporary developments in the technology of war, in particular the existence of thermo-nuclear weapons and the speed with which they can be used against an adversary, raise the delicate problem of the rights of States that are in danger of armed attack. Today, when long-range missiles with nuclear warheads are able to devastate whole regions and countries, the difference between actual and imminent attack becomes negligible (cf. Brownlie, Use of Force, p.368). Today only an actual attack justifies action in self-defence and there is no right of anticipatory or pre-emptive self-defence."
374. ? (x) Fundamental Rights and Constitutional Remedies in Pakistan by ? Mr. S. Sharifuddin Pirzada: wherein under the caption "Emergency Provisions", the author has referred to the Latin Proverb Inter arma silent leges as under:-
375. "Inter arma silent leges.--When there is an armed conflict, the laws remain silent.
376. ' We have good reason to realise the truth of Cieero's adage that amidst the clash of arms the laws are silent. The still small voice of the law is quelled while men kill and destroy in defiance of its dictates'--Lord Macmillan. "
377. He has also referred to Holmes, J.'s observations in the case of Schenak v. U.S. (249 US 47) to the following effect:
378. "When a nation is at war many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any Constitutional right."
379. The author also points out that there are two categories of war i.e. defensive war and aggressive war and that the former is clearly permissible, whereas the latter has been held to be illegal in the judgment of the International War Crimes Tribunal. The author has also dilated upon the term "war" and "external aggression" and observed that "Whatever else war may mean, an essential element in it is animus belligerendi on the part of both, or at least one of the combatants". Under the caption "satisfied", the following observations have been made:-
380. "Satisfied:
381. The word 'satisfied' connotes a mental or subjective state personal to the authority whose satisfaction is required. The use of the expression 'satisfied' simpliciter without a qualifying adverb such as 'reasonably' shows that it has not been used in an objective sense. Even otherwise emergency is a matter of which the President is the sole Judge and no Court can question his view."
34. I may now refer to the case-law and the treatises relied upon by Mr. S.Sharifuddin Pirzada. I have already discussed hereinabove the case of Ghulam Sarwar (AIR 1967 SC 1335) and the case of Muhammad Yaqub AIR 1968 SC 765 and, therefore, they need not be- repeated.
(i) Ch. Manzoor Elahi v. Federation of Pakistan etc. PLD 1975 SC 66:
382. In the above case the detention of Chaudhry Zahoor Elahi in the Tribal Area of Balochistan was assailed inter alia on the ground of violation of Article 9 of the Constitution. It may be advantageous to reproduce the following extracts from the opinions of Muhammad Yaqub Ali and Salahuddin Ahmed, JJ:-
383. Extract from the opinion of Muhammad Yaqub Ali, J:
384. "A proper analysis of the Constitutional provisions, mentioned above brings out that Fundamental Rights are so firmly entrenched in the Constitution that even while the Proclamation of Emergency is in force every citizen will, as provided in Article 4, enjoy the protection of law and treated in accordance with law. In particular-
385. '(a) ?????? no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) ??????? no person shall be prevented from or be hindered in doing that which is prohibited by law; and
(c) ??????? no person shall be compelled to do that which the law does not require him to do.'
386. Under Article 9 he shall not be deprived of life or liberty save in accordance with law. Under Article 10(1) and (2) when a person is arrested he shall not be detained in custody without being informed as soon as possible of the grounds of his arrest and will not be denied the right to be defended by a legal practitioner of his own choice. And 'every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest'. Any law or action, which is violative of these rights, will be void under Article 8 of the Constitution. Since Articles 9 and 10 are not included in Article 232(1), referred to above, the State shall not frame any law even while the Proclamation of Emergency is in force in contravention of these rights. If such a law is enacted, any act done or proceeding. undertaken under it, shall be struck down by a High Court under Article 199 as without lawful authority and of no legal effect. This result will follow even if the President has by an Order declared that the right to move any Court for the enjoyment of these Fundamental Rights shall remain suspended while the Proclamation of Emergency is in force, for, as said earlier, Article 233 does not permit the State to make laws which are inconsistent with the Fundamental Rights other than the Rights specified in Articles 15, 16, 17, 18,19 and 24. This power is independent of the power of the High Court to enforce Fundamental Rights conferred by Chapter 1 of Part II of the Constitution. Consequently if a person is taken into custody under a law which is violative of Articles 9 and 10, a High Court will under Article 199(1)(b) issue a writ of habeas corpus and direct his release forthwith. Our Constitution, thus, ensures that no person shall be deprived of his life and liberty save in accordance with law and that the right conferred on every citizen by the Constitution to enjoy the protection of law is not affected in any manner by the Proclamation of Emergency issued by the President under Article 232. I am making mention of the Proclamation of Emergency because it was in force on November 12, 1973, when the prisoner was arrested from his house in Gulberg, Lahore. An Order was also made by the President on August 15, 1973, that the right to move any Court for the enforcement of Fundamental Rights specified in Articles 10, 15, 16, 17, 18, 19, 23, 24, 25 and 27 of the Constitution shall remain suspended for the period during which the Proclamation is in force. As Article 9 is not specified in the Order issued by the President, the right to move a High Court under Article 199 and to move this Court under Article 184(3) for its enforcement is not affected by the Presidential Order."
387. Extract from the opinion of Salahuddin Ahmad. J:
388. "My conclusions may be summed up thus:-
389. Pakistan is governed by the rule of law, as embodied in Articles 4 and 5 of the Constitution. The Constitution creates no right and imposes no duty in vain.
390. Remedy or no remedy, nobody is relieved of his basic obligation to obey the Constitution and law.
391. Each one of the three organs of the State---the Executive, the Legislature and the Judiciary is bound by the oath not only to preserve, protect and defend the Constitution but also to abide by the Constitution and the law.
392. The 'will' of the Constitution is supreme, and nobody can be permitted to flout the 'will'. It is inconceivable that the Constitution be not followed. Anything done in violation of the Constitution is void and has no existence in law. No violation of the Constitution can be tolerated.
393. Fundamental Rights are available throughout Pakistan including the Tribal Areas and the superior Courts have jurisdiction to enforce them within the limits of their respective territorial jurisdiction including the Tribal Areas.
394. A Fundamental Right not suspended under Article 233 of the Constitution remains fully operative, and everybody in Pakistan is under an obligation to respect it. The mere fact that an aggrieved person is temporarily prevented from moving any Court for the enforcement of
395. ? a Fundamental Right does not relieve an authority of its obligation to comply with it.
396. A High Court has jurisdiction under Article 199 of the Constitution to grant relief to a person arrested illegally within its jurisdiction although he is for the time being detained outside the jurisdiction.
397. A High Court has power to grant relief to a person, detained within its territorial jurisdiction although he was attested illegally outside the jurisdiction.
398. Where the liberty of a person is involved a High Court can exercise its jurisdiction under Article 199 of the Constitution and grant him relief even though he has misconceived his remedy and come up with an application under sections 498 and 561-A of the Code of Criminal Procedure.
399. Under Article 199'of the Constitution a High Court has a variety of powers, any one of which can be exercised to grant relief to the aggrieved person.
400. Article 199 of the Constitution is available not only for the enforcement of the Fundamental Rights but also to enforce the rights and obligations as contained in Articles 4 and 5 of the Constitution.
401. Frontier Crimes Regulation is 'existing law' under Article 268 of the Constitution and it is continued in force subject to the Constitution and until altered, repealed or amended, etc.
402. Section 11 of the F.C.R. is not 'law' within the accepted connotation of the term, and is, therefore, not 'law' as contemplated in Articles 4 and 5 of the Constitution."
403. .
(ii) Makhan Singh Tarsikka v The State of Puniab AIR 1964 SC 381:
404. This case has already been dealt with hereinabove in para. 31. However, it may be pertinent to reproduce the observation relating to the continuation of Emergency, which reads as follows:-
405. "During the course of the hearing of these appeals, it has been strenuously pressed before us by Mr. Setalvad that the emergency created by the Chinese act of aggression may last long and in consequence, the citizens would be precluded from enforcing their fundamental rights specified in the Presidential Order during the period that the Order is in operation. That, however, has no material bearing on the points with which we are concerned. However, long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of the emergency, are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during periods of grave crisis, such as our country is facing today. As Lord Wright observed in the case of Liversidge, 1942 AC 206, 'the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the emergency.' The other aspect of Mr. Setalvade's argument was that during the operation of the Presidential Order, the executive may abuse its powers and the citizens would have no remedy. This argument is essentially political and its impact on the Constitutional question with which we are concerned is at best indirect. Even so, it may be permissible to observe that in a democratic State, the effective safeguard against abuse of executive powers whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public opinion."
(iii) ?????? Minerva Mills Ltd. and others v Union of India and others AIR 1980 SC 1789: in which the majority held that Article 368 of the Indian Constitution authorising the Parliament to amend the Constitution did not enable it to alter the basic structure of the framework of Constitution. Bhagwati, J. while agreeing with the conclusion that the insertion of subsections (4) and (5) in Article 368 was unconstitutional and void on the ground that it damaged the basic structure of the Constitution and went beyond the amending power of the Parliament, also dilated upon the power of the Court to scrutinise an emergency proclamation issued by the President under clause (1) of Article 352 of the Indian Constitution and observed inter alia as under:-
406. "The satisfaction of the President is a condition precedent to the exercise of power under Article 352, clause (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be Constitutionally invalid.
407. ????????????????????????????
408. ????????????????????????????.
409. In fact, the judgment of Gupta, J. and myself in State of Rajasthan v. Union of India AIR 1977 SCJ361 (supra) completely support me in the view I am taking. A Proclamation of Emergency is undoubtedly amenable to judicial review though. on the limited ground that no satisfaction as required by Article 352 was arrived at by the President in law or that the satisfaction was absurd of perverse or mala fide or based on an extraneous or irrelevant ground."
(iv) ?????? Waman Rao v. Union of India AIR 1981 SC 271:
410. In the above case the validity of Proclamation of Emergency of 1975 was assailed after its revocation as a collateral issue before the Supreme Court. It was contended that there had not been, as a matter of fact, any threat to the security of India on account of which Proclamation could have been issued. It was further urged that the Proclamation was issued not for legitimate purpose as envisaged by Article 352(1) but with the view to perpetuate the Prime Minister Mst. Indra Gandhi in power and, therefore, it was clearly mala fide and for collateral purposes and hence beyond the power of the President under the above provision of the Constitution. The Indian Supreme Court declined to examine the above questions as it was of the unanimous opinion that the Proclamation of 1971 was then still lawful in operation at the time when the Proclamation of Emergency of 1975 was issued.
(v) ??????? Chandler and others v. Director of Public Prosecutions 11962) 3 All ER 142):
411. In the above case the facts were that the appellants who were members of the Committee of 100, believing that the possession of nuclear weapons should be forbidden everywhere, planned a demonstration at an R.A.F. station belonging to her Majesty, which was a prohibited place for the purposes of the Official Secrets Act, 1911. They proposed by non-violent action to immobilise the aircrafts there for a period of some six hours. The air base was occupied by squadrons assigned to the Supreme Commander, Allied Forces, Europe and kept on alert and ready for combat. The appellants were convicted under the above Act. They took up the matter to the House of Lords by way of an appeal but the same was dismissed. Most of the Lords who heard the case recorded their separate opinions. Lord Reid made the following observations:
412. "It is in my opinion clear that the disposition and armament of the armed forces are, and for centuries have been, within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised. I need only refer to the numerous authorities gathered together in China Navigation Co. Ltd. v. A.G. Anyone is entitled, in or out of Parliament, to urge that policy regarding the armed forces should be changed; but, until it is changed, on a change of Government or otherwise, no one entitled to challenge it in Court. "
413. Lord Radcliffr, made the following observations:
414. "I think that the question whether it is in the true interests of this country to acquire, retain or house nuclear armaments depends on an infinity of considerations, - military and diplomatic, technical, psychological and moral, and of decisions, tentative or final, which are themselves part assessments of fact and part expectations and hopes. I do not think that there is anything amiss with a legal ruling that does not make this issue a matter for judge of jury."
415. Whereas Lord Hodson made the following observation in his note:-
416. "In China Navigation Co. Ltd. v. A.G., a civil action in which the plaintiffs claimed against the Crown a declaration that they were entitled to armed guards as a protection against piracy, this passage was cited together with a wealth of authority on the exercise of the royal prerogative. One may compare also The Zamora a prize case where Lord Parker of Waddington, delivering the judgment of the Privy Council concerning the right to requisition property under international law, said:
417. 'Those who are responsible for the national security must be sole Judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public'."
(vi) ?????? Teh Chene Poh alias Char Meh v Public Prosecutor. Malayasia (1980
418. ??????????? AC 458:
419. In the above case the facts. were that in September, 1964 the ruler of Malaysia proclaimed an emergency and Parliament enacted the Emergency (Essential Powers) Act, 1964 delegating to the ruler powers to make laws during the emergency. The 1964 emergency was never expressly revoked. On May 15, 1969, during the Parliamentary Elections the ruler proclaimed another emergency and, as Parliament was .not sitting, made the Emergency (Essential Powers) Ordinance, 1969 under the powers conferred on him by Article 150(2) of the Constitution of Malaysia. He, at the same time, by a security area proclamation made under section 47 of the Internal Security Act, 1960, declared the whole of Malaysia to be a security area. The Parliament sat again on February 20, 1971. In 1975 the ruler purporting to act under a regulation making power contained in section 2 of the Ordinance of 1969 made the Essential (Security Cases) (Amendment) Regulations (the Security Eases Regulations), which provided inter alia that the security offences were to be tried by a Single Judge sitting .without a jury or assessors instead of by the ordinary criminal procedure provided for by the Criminal Procedure Code. On 13-6-1976 the defendant was found in Penang in possession of a revolver and ammunition. He was charged under section 57(l) of the Internal Security Act, 1960 and was tried by the special procedure provided for by the Security Cases Regulations. He was convicted. His appeal was dismissed by the Federal Court of Malaysia.
420. He appealed to the Judicial Committee on the ground that the Security Cases Regulations were invalid, that the security area proclamation had lapsed, and. that the Attorney-General's decision. to prosecute under the Internal Security Act, 1960 instead of under the Arms Act, 1960 was contrary to Article 8(1) of the Constitution. The Privy Council allowed the appeal inter alia by holding that Ordinance No.l of 1969 had lapsed when Parliament sat on 20-2-1971, and thus, the ruler had no power after that date to alter the criminal procedure set out ? in the Criminal Procedure Code. Lord Diplock, who spoke on behalf of the Privy Council, made the following observations:--
421. ? "The proclamation is lawful because it is considered by the Yang di- Pertuan Agony to be necessary to make an area a security area for the purpose, not of suppressing violence by individuals generally out of ? suppressing existing or threatened organised violence of the kind
422. ? described in the section. Once he no longer considers it necessary for hat particular purpose it would be an abuse of his discretion to fail to exercise his power of revocation, and to maintain the proclamation in force for some different purpose.
423. This, however, does not mean, as the defendant would have it, that the security area proclamation can be treated by the Court as having lapsed ipso facto as soon as there are no longer any grounds for considering it still to be necessary for the particular purpose described in section 47 for which it was originally made. Apart from annulment by resolutions of the both Houses of Parliament it can be brought to an end only revocation by the Yang di-Pertuan Agony. If he fails to act the Court has no power itself to revoke the proclamation in his stead. This, however, does not leave the Courts powerless to grant to the citizen a remedy in cases in which it can be established that a failure to exercise his power of revocation would be an abuse of his discretion. Article 32(l) of the Constitution makes the Yang di-Pertuan Agong ? immune from any proceedings whatsoever in any Court. So, mandamus to require him to revoke the proclamation would not lie against him: but since he is required in all executive functions to act in accordance with the advice of the cabinet mandamus could in their Lordships' view, be sought against the members of the cabinet requiring, them to advise the Yang di-Pertuan Agong to revoke the proclamation.'
(vii) Ernest DaCOSTA v. Melvin LAIRD Individuall an as Secreta - of Defence et al (471 Federal Reporter 2d Series 1146).
424. In the above case the question before the United States Court of Appeal Second Circuit was, whether the Secretary of Defence, Secretaries of Army, Navy and Air Force, and Commander of American Military Forces in Vietnam may implement the President's directive ordering mining of ports and harbors of North Vietnam and continuation of air and naval strikes against military targets located in North Vietnam. The appellant before the Court sought a declaratory judgment first before the Circuit Judge and then before the United States Court of Appeal Second Circuit that the military operations undertaken pursuant to the above directive were unlawful m the absence of explicit congressional authorisation. The Court declined the above prayer and made the following observation:-
425. "Judges, deficient in military knowledge, lacking vital information upon which to assess the nature of battlefield decisions, and sitting thousands of miles from the field of action, cannot reasonably or appropriately determine whether a specific military operation constitutes an 'escalation' of the war or is merely a new tactical approach within a continuing strategic plan. What if, for example, the war 'de-escalates' so that it is waged as it was prior to the mining of North Vietnam's harbors, and then 'escalates' again? Are the Courts required to oversee the conduct of the war on a daily basis, away from the scene of action? In this instance, it was the President's view that the mining of North Vietnam's harbors was necessary to preserve the lives of American soldiers in South Vietnam and to bring the war to a close. History will tell whether or not that assessment was correct, but without the benefit of such extended hindsight we are powerless to know."
426. (viii)Kurt G W Ludecke v. W. Frank Watkins, as District Director of Immigration (335 US 160) 92 L. Ed. 1881:
427. In the above case a German alien enemy was directed to be removed from the United States under the provisions of the Alien Enemy Act upon a finding that he was dangerous to the public peace and safety. His petition for habeas corpus was denied in the lower Courts. He approached the Supreme Court of United States. In an opinion, Frankfurter, J. upheld the above action and held that the question of continuation of World War II after the actual cessation of hostilities and whether the appellant was dangerous to public peace and safety were questions which could not be subject to judicial review. He also observed that under the present post war conditions war could not be considered as terminated.
428. Whereas Blank, J. with the concurrence of Douglas, Murphy and Rutledge, JJ. dissented on the ground that as regards deportability of alien enemies the war should be considered as ? terminated.
429. Douglas, J. with the concurrence of. Murphy and Rutledge, 1J. dissented on the ground that, "for purposes of review on habeas corpus, the deportation of an alien enemy is no different than any other deportation proceeding, and is subject to the same due process requirements of reasonable notice and fair hearing, absence of which calls for judicial Frankfurter, J. inter alia recorded the following reasons in support of his above view:-
430. "Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined. In relation to the distribution of Constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell speaking of this very Act, is still pertinent:
431. 'All systems of Government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description: but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God is not likely ever to become the character of the American people'." [Fries' case (CC) F.Case No.5126 (supra)].
432. Whereas Black, J. gave the following reasons for his above view:-
433. "But I do not reach the question of power to deport aliens of countries with which we are at war while we are at war, because .I think the idea that we are still at war with Germany in the sense contemplated by the statute controlling here is a pure fiction. Furthermore, I think there is no act of Congress which lends the slightest basis to the claim that after hostilities with a foreign country have ended the President or the Attorney-General, one or both, can deport aliens without a fair hearing reviewable in the Courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion of formal peace with Germany, Congress unequivocally required that enemy aliens be given a fair hearing before they could be deported."
434. Douglas, J. advanced the following reasons to support of his above view:
435. "The needs of the hour may well require summary apprehension and detention of alien enemies. A nation at war need not be detained by time-consuming procedures while the enemy bores from within. But with an alien enemy behind bars, that danger has passed. If he is to be deported only after a hearing, our Constitutional requirements are that the hearing be a fair one. It is foreign to our thought to defend a mock hearing on the ground that in any event it was a mere gratuity. Hearings that are arbitrary and unfair are no hearings at all under our system of Government. Against them habeas corpus provides in this case the only protection. "
(ix) ?????? Kiyoshi Hirabavashi v. United States (63 S.Ct.1375) :
436. In the above case the appellant was a Japanese. After the Japan's bombing of Pearl Harbour, and the subsequent war, alien Japanese as well as those with Japanese ancestry were subject to curfews during the night time hours and put under military observation in concentration camps. The above action was impugned. The question before the Supreme Court of United States inter alia was to determine the extent to which, if at all, these elements or the Proclamation of Emergency itself conformed with the Constitution of the United States. C.J. Stone spoke on behalf of the Court and held as follows:--
437. "The war power of the national Government is 'the power to wage was successfully' .... It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defence, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war ... ...Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it."
(x) ??????? RS Sterling Governor of the State of Texas, et al v. E. Constantine (287
438. ??????????? US 378=77 L.Ed.375) :
439. The above case has been given in the book titled "Rule of Law in a State of Emergency" by Subrata Roy Chowdhury, in which the US Supreme Court took the view that the question, whether or not declaration of martial law was justified in the facts and circumstances of the case, was a judicial question, and hence the decision of the executive was subject to review by the judiciary. It further held that in declaring martial law to control oil production, the Governor of Texas had exceeded his authority.
(xi) ?????? Branniean and McBridee v. United Kingdom (17 E.H.R.R.539)(1993) :
440. This judgment has already been referred to hereinabove in para. (33)(a)(vii). However, it may be pertinent to quote the following observations from the judgment:--
441. "Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the 'extent strictly required by the exigencies' of the crisis. The domestic margin of appreciation is, thus, accompanied by a European supervision. At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation."
35. 1 may now refer to the treatises referred to by Mr. S.Sharifuddin Pirzada
(i) ???????? War, Aggression and Self-Defence by Yoram Dinstein, Second Edition, from wherein I have already quoted hereinabove in para.(20)(i) the relevant exracts, which needs not be reproduced.
(ii) ??????? Cases and Materials on International Law by D.J. Harris, Fifth Edition, 1998 Publication, which has also been referred to in para.(2Q)(ii) and the relevant portions thereof have been quoted..
442. ? (iii) ???? International Law, Fourth Edition, by Malcolm N. Shaw
443. In the above treatise the author under the caption "Justiciability, act of State and related doctrines" has. inter alia made the following observations:--
444. "The concept of non justiciability applies with regard to both domestic and foreign executive acts. In the former case, the Courts will refuse to adjudicate upon an exercise of sovereign power, such as making war and peace, making international treaties or ceding territory. As far as the latter instance is concerned, Lord Wilberforce declared in Buttes Gas and Oil Co. v. Hammer (1982 AC 888).
445. There exists in English law a general principle that the Courts will not adjudicate upon the transactions of foreign sovereign states ? it seems desirable to consider this principle ? not as a variety of 'act of State' but one for judicial restraint or abstention.
446. Such a principle was not one of discretion, but inherent in the nature of the judicial process. Although that case concerned litigation in the areas of libel and conspiracy, the House of Lords felt that a determination of the issue would have involved the Court in reviewing the transactions of four sovereign States and having to find that part of those transactions was contrary to international law. Quite part from the possibility of embarrassment to the foreign relations of the executive, there were no judicial or manageable standards by which to judge such issues.-
(iv) ?????? Ireland's Evolving Constitution, 1937-97 Collected Essays Edited by Tim Murphy and Patrick Twomey:
447. In the above treatise the authors have inter alia dealt with the topic "A State of Emergency" on the Island of Ireland. It may be stated that at footnote marked 25 at page 203 of the aforesaid treatise, the authors have referred to the remarks of 1996 Constitution Review Group as to the attitude of British Judiciary as follows:-
448. "In the introduction to its consideration of the Constitution's fundamental rights provisions, the 1996 Constitution Review Group observed, with regard to the 1922 Constitution, that 'most members of the new judiciary had been schooled in the British tradition of parliamentary sovereignty and were not at case with concepts of fundamental rights and powers of judicial review of legislation'."
449. The author has referred to the Constitutional history of Northern Ireland including the drafting of replacement for the 1992 Constitution and the extension of the definition of the expression "time of war" as follows:-
450. "The drafting of a replacement for the 1922 Constitution coincided with unresolved tension regarding Northern Ireland and the threat of war on the Continent. Yet, when the latter became a reality, neutrality necessitated an amendment to the new Constitution in the form of the First Amendment extending the Article 28.3 definition of 'time of war' (during which legislation is withdrawn from normal judicial control) to include conflicts in which the State is not a participant but which affected the 'vital interests of the State'. Subsequently, in 1941, the Second Amendment to the Constitution extended the definition, to include such time after the termination of such war or conflict until the Oireachtas deems the national emergency to have passed. Thus, the 1939 emergency continued in place until it was overtaken in September, 1976 by a new national emergency, this time arising out of the conflict in Northern Ireland. "
(v) ??????? Rule of Law in a State of Emergency by Subrata Roy Chowdhurv:
451. It may be stated that some of the extracts from the above book have already been quoted hereinabove. The author under the captconsidered necessary or advisable to leave the political organs of the State with a certain--preferably implied--margin of appreciation'."
(vi) ?????? Emergency Powers and the Courts in Pakistan and India by Imtiaz Omar: which is in fact the author's thesis on the above topic. He has referred to the imposition of Emergencies in India and Pakistan and the case-law. He has commented upon the imposition of Emergency in India through Proclamation of Emergency dated 26-6-1975, as under:-
452. "Faced with the threat of losing power to the. opposition, Mrs. Gandhi, apparently without consulting the Cabinet, asked the President to proclaim an Emergency on the ground that the security of India was threatened by international disturbances. The Proclamation of Emergency, which was issued on June 26, 1975, inaugurated an era of draconian measures, designed to suppress political dissent and purportedly implemented to bring about fundamental social and political reforms.
453. Since the Proclamation of Emergency of 1971 was still in operation, no further Proclamation was actually required to enable the Central Government to augment its legislative or executive power, particularly as the Supreme Court had consistently and unequivocally held that the continuation of an Emergency was not a question which could be agitated in the Courts. Perhaps it was felt that the prolongation of the Emergency of 1971 had rendered it politically ineffective and in order to create a 'new psychological feat of emergency it had become necessary to reproclaim it'. "
454. He also brought out a distinction between suspension of the fundamental rights and the suspension of the Constitutional remedies to enforce a fundamental right in line what was held in Ghulam Sarwar's case (supra) by the Indian Supreme Court but which was overruled in Muhammad Yaqub's case (supra) as follows:-
455. "The distinction between the suspension of a fundamental right and the suspension of the Constitutional remedies to enforce a fundamental right is of central importance in considering the scope of legislative competence during the operation of a Proclamation of Emergency. Since the Constitutions of both India and Pakistan expressly provide for the suspension of certain specified fundamental rights in the sense that, during an Emergency, the Legislatures are empowered to enact laws which would normally be inconsistent with the specified rights, it appears that a suspension of the right to enforce a fundamental right cannot be construed as empowering the Legislature to enact laws inconsistent with any fundamental rights which are not suspended.
456. Although this implication has been conceded by the Supreme Court of India, the Court has adroitly avoided confronting the jurisprudential paradox inherent in this Constitutional arrangement by submerging the problem in the terminology of standing."
(vii) Comparative Federalism by Dr. Justice Durea Das Basu, 1987 Edition:
457. The author points out that there is no emergency provision in the Constitution of the U.S.A. of the nature of Articles 352 and 354 of the Indian Constitution, in the result there is no possibility of Constitutional distribution of power being superseded by the Union on the ground of war and like emergency. The author under the caption "Judicial expansion of federal power during external emergency" commented upon the U.S.A. Constitution as under:-
458. "Judicial expansion of federal power during, external emergency.--There is no emergency provision in the Constitution of the U.S.A. of the nature of Articles 352-354 of the Indian Constitution. In the result, there is no possibility of the Constitutional distribution of powers being superseded by the Union on the ground of war or like emergency.
459. Nevertheless, the Judiciary has aided the expansion of federal power in times of war as well as for its preparation and for subsequent rehabilitation after its termination, by a liberal expansion of the federal power relating to war.
460. .In the Constitution of the U.S.A. all executive and legislative power relating to war or defence is vested in the Union, the States having no scope for their participation in the exercise of these powers.
461. A. ??????? The executive power is derived from the President's power as 'Commander-in-Chief of the Army and Navy of the United States' ((Art.II, S.2(1))].
462. Though from time to time, there have been protests against the vast powers assumed by the President in exercise of the foregoing power, alongwith the 'necessary and proper' clause, in the long run, both the Congress and the Supreme Court have supported the amplitude of the President's war power to come to the following results:
(i) ???????? The powers as Commander-in-Chief include the power to initiate as well as to conduct the war and to send troops to fight, in anticipation of legislative declaration of war.
463. A time limit has, however, been set by the War Powers Act, passed by Congress in 1973, within which authorisation by ,Congress must be obtained.
(ii) It includes the power to determine the cessation of hostilities .
(iii) ?????? It includes the power to suspend the writ of habeas corpus in case of invasion [(Art.I, S.9)].
(iv) ?????? The war power of the President is not subject to judicial review, and the Court has refused to interfere with the Presidential commitment of American forces to fight a foreign war without Congressional sanction.
464. It has, however, been held that in exercise of the war power, the President cannot--
465. Take possession of private property, without the authority of law."
466. The author has also drawn a distinction between the period of war and the period commencing after the termination of war with reference to the judicial power as follows:
467. "After the termination of war, however, the expansion of federal power is brought under closer judicial control. While the, Court would uphold federal legislation which is necessary to remedy the condition which followed from the mobilisation of men and materials for successful prosecution of the war, the propriety of the exercise of the power after termination of hostilities is open to judicial review and it cannot be allowed to continue indefinitely or so long as the economic effects of war are felt."
468. The author has also highlighted that in Australia there is no emergency provision in the Australian Constitution and that during the actual warfare the power of judicial review is reduced to minimum inasmuch as whether a particular measure is necessary for the purpose of defence, can be determined only if the reasons for it could be brought before the Court. However, as regards after the termination of war the author has analysed the position with reference to judicial power as under:-
469. ". After termination of war.--When peace is restored, the Court would act upon the general principle that no such control and regulation of the social and economic life would be necessary as would be justified when the country was engaged with powerful enemies.
470. Nevertheless, even after the cessation of hostilities, the Court would allow a more liberal use of the defence power (a) during a period of transition, and (b) relating to measures necessary for preparation of defence for some future war. ???
(a) ??????? Those measures which are required during the transitional period to restore the condition which has been upset by the war, such as the rehabilitation of the armed personnel, rebuilding of cities destroyed by war, control of prices and the like, would be treated as incidental to the exercise of the defence power, subject, however, to a great degree of judicial review as to the need for such legislation, having regard to the changing situation.
(b) ??????? The Court would similarly tolerate those measures which are necessary in anticipation of a future war, e.g., raising army, control of manufactured goods and of services that may be required for defence, including control of credit. But the Court would not tolerate restrictions upon personal liberty, such as the freedom of association, unless the imminence of war was demonstrated to the satisfaction of the Court together with reasonable connection between the restriction and the emergency. "
471. The author then referred to the position obtaining in Canada and pointed out that there is no emergency provision in the Canadian Constitution and the power is derived through statutes. The author enunciated the legal position obtaining after the termination of war as under-
472. "This does not mean that war-time control of the Federal Legislature over Provincial subjects, such as control of boarding and profiteering by enacting preventive measures, would be allowed to continue indefinitely. In the Board of Commerce case, the Privy Council laid down that-
(a) ??????? In t he name of war emergency, the Federal Legislature could not make ?????? a permanent law relating to Provincial subjects.
(b) ??????? After the cessation of hostilities, in order to sustain the continuance of such federal law, it must be demonstrated to the Court that 'that circumstances are (still) abnormal' so as to make a federal law 'without the cooperation of the Provincial Legislatures' thereby overriding 'the distribution of legislative powers enacted by the Constitution Act'."
473. The author also points out that the Constitutions of West Germany, Malaysia, Nigeria and India contain express powers of imposing emergencies.
474. He also highlights that until Constitution (Forty-fourth Amendment) Act, 1976, there was no parliamentary control over revocation of a Proclamation once the issue of the Proclamation has been approved by the resolution by the House of Parliament and thereafter it was left entirely to the discretion of the Union Executive when to lift the emergency. He further highlights the amendment brought about by the Constitution (Forty-fourth Amendment) Act, 1978, as under:-- ,
475. "(a) ?????? On the expiry of one month from its issue, unless it is approved by resolutions of both Houses of Parliament before the expiry of that period If the House of the People is dissolved at the date of issue of the Proclamation or within one month thereof, the Proclamation may survive until 30 days from the date of the first sitting of the House until its reconstitution, provided the Council of States has in the meantime approved of it by a resolution [Clause (4)].
(b) ??????? It will get a fresh lease of 6 months from the date it is approved by resolutions of both Houses of Parliament [clause (5)], so that it will terminate at the end of 6 months from the date of the last of such resolutions.
476. ? ???????? Every such resolution under clauses (4) and (5), must be passed by a ??????????? special majority in each House [Claust (6)].
(d) ??????? The President must issue a Proclamation of revocation any time that the House of the People passed a resolution disapproving of the issue or continuance of the Proclamation [Clause (7)]. For the purpose of convening a special sitting of the House of the People for passing such a resolution of disapproval, power has been given [Clause (8)] to not ` less than Dl0th of the Members of the House to give a notice in writing to the Speaker or to the President (when the House is not in session) to convene a special sitting of the House for this purpose, within 14 days from the date of service of such notice on the Speaker or the President, as the case may be. "
(viii) Sawer's Australian Constitutional Cases Fourth Edition, by Leslie Zines, 1982 Publication:
477. In the above treatise the author has referred to an Australian judgment in the case of Marcus Clark & Co. Ltd. v. The Commonwealth (1952) 87 CLR . 177, in which the provision of The Defence Preparations Act, 1951, have been dilated upon by Fullagar, J. and with reference to-probability of imminent war reference has been made to certain precedents of Australian origin as under:-- .
478. "Thus, Dixon, J. said 'it is no doubt true that a mounting danger of hostilities before any actual outbreak of war will suffice to extend the actual operation of the defence power as circumstances may appear to demand' (at p.195). Williams, J. said: 'The defence power in peace time authorizes any legislation which is reasonably necessary to prepare for war, including, as I have said, any legislation which would be authorized by an expansion of the power in view of the increasing probability of imminent war. Any conduct which is reasonably capable of delaying or of otherwise being prejudicial to the Commonwealth preparing for war would be conduct which could be prevented or prohibited or regulated under the defence power' (at p.225) and Kitto, J. said: 'the determinant of the ambit of the defence power at a given point of time is the situation, however, it may have been brought about, in which Australia finds itself at that time' (at p.274)."
(ix) ?????? Rights and Constitutionalism, The New South African Legal Order, edited by Dawid Van Wyk John Duaard, Bertus de Villiers, and Dennis Davis:
479. In the above treatise the authors have dealt with the emergency under the caption "State of Emergency and Suspension" particularly with reference to South African Constitution. They opined inter alia as follows:-
480. "Not all 'emergencies' justify an official state of emergency and the suspension of fundamental rights. Only those which threaten the life of a nation require exceptional measures. The best way to prevent abuse of this power and unlawful infringement of fundamental rights is to provide for comprehensive Constitutional checks in such situations. In times of emergency the protection of fundamental rights becomes all the more important. Section 34 is such an emergency clause which may only be implemented under the control of a supreme Constitution which provides for extensive judicial and legislative controls. "
(x) ??????? Constitution of Republic of South Africa 1996, As adopted by the Constitutional Assembly on 8th May, 1996, and as Amended on 11th October. 1996: in which Article 37 which deals with the states of emergency, reads as follows:--
481. "States of emergency.--(1) A state of emergency may be declared only in terms of an Act of Parliament, and only when-
(a) ??????? the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
(b) ??????? the declaration is necessary to restore peace and order
(2) ??????? A declaration of a state -of 'Emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only--
(a) ??????? prospectively; and
(b) ??????? for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of Emergency must be by a resolution adopted with a supporting vote of a majority of the members of the Assembly. Any subsequent extension must be by a resolution adopted with a supporting vote of at least 60 per cent. of the members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.
482. ? (3) ?????? Any competent Court may decide on the validity of
(a) ??????? a declaration of a state of emergency;
(b) ??????? any extension of a declaration of a state of emergency; or
(c) ??????? any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
(4) ??????? Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights any to the extent that--
(a) ??????? the derogation is strictly required by the emergency; and
(b) ??????? the legislation--
(i) ???????? is consistent with the Republic's obligations under international law applicable to states of emergency;
(ii) ??????? conforms to subsection (5); and
(iii) ?????? is published in the national Government Gazette as soon as reasonably ??????????? possible after being enacted.
(5) ??????? No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise-
(a) ??????? indemnifying the State, or any person, in respect of any unlawful act;
(b) ??????? any derogation from this section; or
(c) ??????? any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table. "
483. The Table of Non-Derogable Rights appended to above Article 37 reads as under:-
TABLE OF NON-DEROGABLE RIGHTS
484. 1 ????????????????????????????????? 2 ????????????????????? ??????????????????????? 3
485. Section ???????????? Section Title ???????????????? ??????????????????????? Extent to which the right is protected
486. Number
487. 9 ????????????????????? Equality ??????????????????????? ??????????????????????? With respect to unfair discrimination
488. ??????????????????????????????????????????????????????????? ??????????? solely on the grounds of race colour, ethnic
489. ??????????? ??????????? or social origin, sex: religion or language
490. 10 ??????????????????? Human Dignity ????????????? ??????????????????????? Entirely
491. 11 ??????????????????? Life ????????????????????????????? ??????????????????????? Entirely
492. 12 ??????? Freedom and security ?????????????? ??????????????????????? With respect to subsections (1)(d) and
493. ??????????? of the person ??????????????????????????? ??????????????????????????????????? (e) and (2)(c).
494. 13 ??????? Slavery, servitude ???????????????????? ??????????????????????? With respect to slavery and servitude
495. ??????????? and forced labour
496. 28 ??????? Children ?????????????????????????????????? ??????????????????????? With respect to
497. -- subsection (1)(d) and (e);
498. --- the rights in sub-paragraphs (i) and (ii) of subsection (1)(g): and
499. --- subsection (1)(i) in respect of children of 15 years and younger
500. 35 ??????? Arrested detained ???????????????????? ??????????????????????????????????? With respect to and accused persons ???????????????? ??????????? ---Subsections (1)(a), (b) and (c) and (2)(d);
501. --- The rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) Subsection (4); and subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair.
502. It is not necessary to refer to the other sub-paras. of , the aforesaid Article for the purpose of the present controversy.
(xi) Constitutions of the Countries of the World Ireland Booklet 2 b Gerard Hogan:
503. In Article 28 of the Ireland Constitution, the words "actual invasion" have been used, whereas in clause (2) of Article 28, the words "actual invasion" have been employed for taking emergency steps. Whereas clause (3) thereof, inter alia, provides as follows:-
504. "In this subsection 'time of war' includes a time when there is taking ? place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and 'time of war or armed rebellion' includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist."
36. From the above-cited case law and the treatises referred to by the learned Attorney-General, learned counsel for the parties and the learned counsel appearing as amicus curiae, the following principles are deducible.
(a) PAKISTANI CASE-LAW
(i) ???????? That the requirement of satisfaction contained in Rule 32 of the Defence of Pakistan Rules involves the exercise of the judgment in relation to a number of relevant factors. Belief would also be necessary as to the existence of certain facts and potentialities they possess to public order and the appreciation of the surrounding facts. [Ghulam Jilani's case (supra)].
(ii) ??????? That there is a marked difference between "being satisfied" and "suspecting upon reasonable grounds" inasmuch as the former connotes a state of mind bordering on conviction introduced by the existence of facts which have removed the doubts, if any, from the mind and taking it out of the state of suspicion. [Mir Abdul Baqi Baloch's case (supra)].
(iii) ?????? That the conditions culminating in Proclamation of Martial Law on 5th July, 1977, were so grave that the very existence of the country was threatened, that the chaos and bloodshed was apprehended and there was complete erosion of the Constitutional authority of the Federal Government let alone that of various Provincial Governments, which situation was compared with the situation contemplated by clause (1) of Article 232 of the Constitution. Such being the case, the situation was obviously at least of the kind contemplated by clause (1) of Article 232 of the Constitution. [Begum Nusrat Bhutto's case (supra)].
(iv) ?????? That a mala fide act is by its nature an act without jurisdiction and that no Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of powers. A mala fide order is a fraud on the statute, which means the order which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral ulterior purposes. [Abdul Rauf's case (supra)].
(v) ??????? That the Judges of the Supreme Court and the High Courts when they enter upon their offices are required to swear on oath that they will "preserve, protect and defend the Constitution". The above two Courts are bound by their oath and duties to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects, save from all defects or harm and to stand firm in defence of its provisions against attack of any kind. [Fazlul Qadir Chaudhry's case (supra)].
(vi) ?????? That even assuming that the immediate cause which gave rise to the issue of proclamation was the imminent danger of being threatened by war, no clear demarcation is possible what is necessary or what is not necessary for meeting that emergency. Internal disorder, sabotage behind the lines, prejudicial acts, acts threatening or disturbing law and order within the country may all have far-reaching effects on the measures needed to be taken for effectively meeting the threats or dangers of war. [Mir Abdul Baqi Baloch's case (supra)].
(vii) That it cannot be said that merely because all hostilities have ceased, the emergency is also at an end. This is purely a political question which is outside the competence of the Court to decide, for the declarations of war and peace are within the executive competence of the executive Government of the country. In such matters the Courts speak in the same voice as the Chief Executive of the State. [Mir Abdul Baqi Baloch's case (supra)].
(viii) That the satisfaction of the President as envisaged by Article 30 of the late Constitution of 1962 was his subjective satisfaction and the ground whether such a situation existed or not could not be gone into by a Court of law. [Malik Ghulam Jilani's case (supra)].
(ix) ?????? That Articles 232 to 237 of the Constitution envisage three kinds of Emergencies namely:
(a) the Emergency under Article 232 due to external or internal aggression called as national emergency;
(b) failure of the Constitutional machinery in a State (Article 235); and
(c) Financial Emergency (Article 235). [Malik Muhammad Suleman, M.N.A.'s case (supra)].
(x) ??????? That the actual occurrence of war or any internal violence was not necessary to justify a proclamation of emergency by the President. [Malik Muhammad Suleman, M.N.A's. case (supra)].
(xi) ?????? That the Executive could know the requirements of the situation and it could know how long proclamation of emergency to continue and what restrictions to be placed on the Fundamental Rights of the citizens during the pendency of the emergency. [Niaz Ahmed Khan's case (supra)].
(xii) That while proclamation of emergency is in force every citizen will, as provided in Article 4, enjoy the protection of law and treatment in accordance with law, in particular-
(a) no action detrimental to the life, liberty, body, reputation, property of any person shall be taken except in accordance with law;
(b) no person shall be presented from or be hindered in doing which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do. [Yaqub Ali, J. (Ch. Manzoor Elahi's case (supra)].
(xiii) That Article 233 does not permit the State to make laws which are inconsistent with the Fundamental Rights other than the rights specified in Articles 15, 16, 17, 18, 19 and 24 of the Constitution. Consequently, if a person is taken into custody under a law which is violative of Articles 9 and 10, the High Court will, under Article 199(1)(b), issue a writ of habeas corpus and direct his release forthwith. [Yaqub Ali, J. Ch. Manzoor Elahi's case (supra)].
(xiv) That the Fundamental Rights not suspended under Article 233 of the Constitution remain fully operative and everybody in Pakistan is under an obligation to respect it. The mere fact that an aggrieved person is temporarily prevented from moving any Court for the enforcement of the Fundamental Rights does not relieve an authority of its obligation to comply with it. [Salahuddin Ahmed, J. (Ch. Manzoor Elahi's case) (supra)].
(xv) That a High Court has the jurisdiction under Article 199 of the Constitution to grant relief to a person arrested illegally within its jurisdiction although he is for the time being detained outside its jurisdiction. [Salahuddin Ahmad, J. (Ch. Manzoor Elahi's case) (supra)].
(xvi) That Article 199 of the Constitution is available not only for the enforcement of Fundamental Rights but also to enforce the rights and obligations as contained in Articles 4 and 5 of the Constitution. [Salahuddin Ahmad, J. (Ch. Manzoor Elahi's case) (supra)]. (N.B. above paras. (xii) to (xvi) relate to late 1962 Constitution)].
(xvii) That by virtue of the Objectives Resolution, which has now become substantive part of the Constitution by incorporation of Article 2A in the Constitution, sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan' through their chosen representatives within the limits prescribed by Him, is a sacred trust and any abuse of position on the part of the chosen representatives will amount to the breach of above sacred trust entailing heavenly and worldly punishment [Sardar Muhammad Muqeem Khoso's case (supra)].
(b) INDIAN CASES
(i) ???????? That under clause (1) of Article 352 of the Indian Constitution, satisfaction of the President to impose Emergency is final and conclusive and is not justiciable in a Court of law. [Pran Nath Lekhi's case (supra)].
(ii) ??????? That on account of approval of the proclamation by resolution of the Houses in Parliament in terms of clause (2) thereof, the proclamation does not cease to be a proclamation and that the resolution of the Houses of Parliament of approving the proclamation issued under clause (1) of Article 352 of the Indian Constitution only results in sanctifying the proclamation made by the President. [Pran Nath Lekhi's case (supra)].
(iii) ?????? That the mere parliamentary approval of the proclamation under Article 352 does not have effect of excluding judicial review to the extent permissible.
(iv) ?????? That the President's power to issue proclamation under Article 356 of the Indian Constitution is conditional subject to the fulfilment of conditions contained therein. If the Proclamation issued is held invalid, then notwithstanding the fact that it is approved by both the Houses of the Parliament, it will be open to the Court to restore the status quo ante to the issuance of proclamation hence restore the legislative assembly and the Ministry of a State.
(v) ??????? That the validity of the proclamation issued by the President under Article 356(1) of the Indian Constitution is judicially reviewable to the extent of examining, whether it was issued on the basis of any material at all, or whether the material was relevant or whether the proclamation was issued in the mala fide exercise of the power.
(vi) ?????? That when prima facie a case is made out in the challenge to the proclamation, the burden is on the Union Government to prove that the relevant material did in fact exist and such material may be either the report of the Governor or other than the report. [N.B. For above paras. (iii) to (vi) please refer to the case of S.R. Bommai and others (supra)].
(vii) That the detenu's right to challenge the legality of detention which was available to him under section 491(1)(b) of Cr.P.C. has been enlarged ? by the fundamental rights guaranteed to the citizens by the Constitution and so whenever a detenu relies upon his fundamental rights even in support of his petition under section 491(1)(b), Cr.P.C. he is really enforcing the said right and in that sense the proceedings inevitably partake of the character of the proceedings taken by the detenu for enforcing these rights which will not be competent during the suspension of the enforcement of the fundamental rights. [Makhan Singh Tarisikka's case (supra)].
505. (viii)That the factum that in a proclamation of emergency under Article 352(1) of the Indian Constitution, the President omits mentioning of the fact that he was satisfied in terms of the above Article would not be fatal. [P.L. Lakhan Pal v. Union of India (supra)].
(ix) ?????? That there is a clear distinction between deprivation of fundamental rights by force of a Constitutional provision itself and such deprivation by an order made by the President in exercise of the power conferred on him under the Constitutional provision and, thus, the President can only make an order under Article 359(1) declaring that the right to move a Court in respect of fundamental rights mentioned therein, which should be a valid one not in violation of Article 14 of the Indian Constitution. [Ghulam Sarwar's case)].
(x) ??????? That if Article 359 of the Indian Constitution is not to be rendered nugatory, it must be held that an order passed thereunder cannot be tested under the very fundamental right the enforcement of which is suspended [Muhammad Yaqub's case (supra)] and thus, thereby overruling Ghulam Sarwar's case (supra).
(xi) ?????? That there is no scope for enquiry into the question by the Court, whether the fundamental right, the enforcement of which the President has suspended under Article 359, has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance. [Muhammad Yaqub's case (supra)].
(xii) That the scope of Article 359(1) of the Indian Constitution is wider than Article 358(2) and that it is not open to anyone either to challenge the validity of any law or any executive action on the ground of violation of fundamental rights specified in the Constitutional Order promulgated under Article 359(1) of the Constitution. [The case of Union of India v. Bhanudas Krishna (supra)].
(xiii) That how long the proclamation of emergency should continue and wheat restrictions should be imposed on the fundamental rights of the citizens during the pendency of the emergency are matters which must inevitably be left to the Executive as it knows the requirements of the situation and the effect of compulsive factors which operate during period of grave crises [Makhan Singh Tarisikka case (supra)].
(xiv) That the satisfaction of the President is a condition precedent to the exercise of power under Article 352(1) of the Indian Constitution and if it can be shown that there was no satisfaction of the President of all, the exercise of the power would be Constitutionally invalid. [Minerva Mills Ltd.'s case (supra)].
(xv) ????? That a proclamation of emergency is undoubtedly amenable to judicial review though on the limited ground that no satisfaction as required by
506. Article 352 was arrived at by the President or that the satisfaction was absurd or perverse or mala fide or based on an extraneous or irrelevant grounds. [Minerva Mills Ltd.'s case (supra)].
(c) ENGLISH CASES
(i) ???????? That "However, precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement". [Lord Atkinson in the case of The King v. Halliday (supra)].
(ii) ??????? That the detenu under Regulation 18-B of the Defence (General) Regulations, 1939, was not entitled to ask the Secretary of the State for particulars-
(a) of the grounds on which the Home Secretary had reasonable cause to believe the detenu to be a person of hostile associations; and
(b) of the ground on which the Home Secretary had reasonable cause to believe that by reason of such hostile associations, it was necessary to exercise control over it.
507. [Viscount Maugham in the case of Liversidge v. Anderson and another's case (supra)].
(iii) ?????? That "To a large extent the sources of information must be secret. Espionage must be met by counter-espionage. Even to refuse the disclosure may give dangerous hints to the enemy ... ..." [Lord Wright in the case of Liversidge v. Anderson (supra)].
(iv) ?????? "... ...that the disposition and armament of the armed forces are, and for centuries have been, within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised," [Lord Reid in the case o1 Chandler and others v. Director of Public Prosecutions (supra)].
(v) ??????? That those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public. [Lord Hodson in the case of Chandler v. Director of Public Prosecutions (supra)].
(vi) ?????? "Apart from annulment of an emergency by resolutions of both Houses of Parliament, it can be brought to an end only by revocation by the Yangdi Pertuan Agong. If he fails to act, the Court has no power itself to revoke the proclamation in his stead. This, however, does not leave the Courts powerless to grant to the citizens a remedy in cases in which it can be established that a failure to exercise his power of revocation would be an abuse of his discretion (i.e. a writ of mandamus against the cabinet directing it to advise the Ruler for revocation of emergency can be issued as per curiarn. [Lord Diplock in the case of The Cheng Poh alias Char Meh and Public Prosecutor, Malaysia (supra)].
(d) U.S.A. CASES
(i) ???????? That "If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings". [Justice Davis in the case of Ex Parte Milligan (supra)].
(ii) ??????? That "Every trial involves the exercise of judicial power, and from what source did the military commission that tried him derive their authority? Certainly no part of the judicial power of the country was conferred on them; because the Constitution expressly vests it "in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish." [Ex Parte Miligan's case (supra)].
(iii) ?????? That "Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are freightful to contemplate." [Ex Part Milligan's case (supra)].
(iv) ?????? "Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved." [C.J. Hughes in the case of Home Building & Loan Association's case)].
(v) ??????? That "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of Government. Such a ? doctrine leads directly to anarchy and despotism." [Justice Sutherland in the case of Home Building & Loan Association's case)].
(vi) That "We recognise the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which were inflicted on our society, it may not only
508. ? swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. " [Justice Douglas in the case of Woods v. Cloyd W. Miller Co.'s case (supra)].
509. ? (vii) That "I think we can hardly deny that the war power is as valid a ground for federal rent control now as it has been at any time. We still ???????? are technically in a state of war. I would not be willing to hold that war powers may be indefinitely prolonged merely by keeping legally alive a ? state of war that had in fact ended." [Justice Jackson in the case of Woods v. Cloyd W. Miller Co.'s case (supra)].
510. ? (viii)That "All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, ? except under circumstances of direct emergency and peril, is inconsistent with our basic Governmental institutions." [Justice Black in the case of Toyosaburo Korematsu v. United States (supra)].
511. ? (ix) That "I should hold that Civil Court cannot be made to enforce an order which violates Constitutional limitations even if it is a reasonable exercise of military Authority. The Courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be Civil Courts and become instruments of military policy." [Justice Jackson in the case of Toyosaburo Korematsu (supra)].
512. ? (x) That "Such great war powers may be abused, no doubt, but that is a bad ??????????? reason for having Judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined. " [Frankfurter, J. speaking for the majority in the case of Kurt G.W. Ludecke (supra)].
(xi) ?????? "... ...I think there is no act of Congress which lends the slightest basis to the claim that after hostilities with a foreign country have ended the President or the Attorney-General, one or both, 'can deport aliens without a fair hearing reviewable in the Court ???????? " [Black, J. in his ? dissenting note in the case of Kurt G.W. Ludecke (supra)].
(xii) That "The war power of the National Government is 'the power to wage war successfully' ... ...It extends to every matter and activity so related to war as substantially to affect its conduct and progress." [Chief Justice Stone in the case of Kiyoshi Hirabashi (supra)].
513. (xiii)That the question, whether or not declaration of martial law was justified in the facts and circumstances of the case, was a judicial question, and hence the decision of the executive was subject to review by the judiciary. [Sterling v. Constantine--United States Supreme Court)].
(e) AUSTRALIAN CASES
(i) ???????? That "If a basis in opinion is sufficient to authorize the most grave interference with personal liberty by indefinite imprisonment, namely, imprisonment during the duration of a war, it can hardly be said that such a basis is insufficient to authorise interference with property." [Latham, C.J. in the case of Adelaide Company of Jehovah's Witnesses Incorporated v. The Commonwealth (supra)].
(ii) ??????? That "The Courts must not, of course, forget that those who are responsible for the national security must be the best judges of what the national security requires, but still in Australia neither the Parliament nor the Governor-General-in-Council can transcend the Constitution, nor can the Governor-General transcend the powers conferred upon him by the National Security Act, 1939-1940. [Starke, J. in the case of Adelaide Company (supra)].
(iii) ?????? That "the Court in its decisions applied a rule that there must be a real and substantial connection between the legislation and the defence situation so created in order that the legislation could be valid, but the Court never considered whether what Germany and Japan had done or might to could be regarded as a danger to Australia so as to warrant legislation under the defence power." [Latham, C.J. in the case of The Australian Communist Party (supra)].
(iv) ?????? Thus, Dixon, J. said: "it is no doubt that a mounting danger of hostilities before any actual outbreak of war will suffice to extend the actual operation of the defence power as circumstances may appear to demand." [Fullagar, J. in the case of Marcus Clark & Co. Ltd. v. The Commonwealth (supra)].
(f) IRISH CASE-LAW
514. "This emergency legislation is of a temporary character, passed for the purpose of securing the public safety and the preservation of the State during a time of national emergency. During such period the duty of determining what provisions are necessary for securing that object is ? vested in the Government, but every such provision must be laid before each House of Aireachtas ... ... ...[In re: Michael Walsh, et. al)].
(g) EUROPEAN HUMAN RIGHTS CASE-LAW
(i) ???????? That "When the State is engaged in a life and death struggle no one can demand that it refrains from taking special emergency measures: salus rei publicae suyrema lex est. Article 15 is founded on the principle. Under the latter "any High Contracting Party may take measures derogating from its obligations under this Convention, provided, however, that it does so only 'to the extent strictly required by the exigencies of, the situation and provided that such measures are not inconsistent with its other obligations under international law'." [Judge Maridakis in the case of Lawless v. Ireland (supra)].
(ii) ??????? That "By 'public emergency threatening the life of the nation' it is to be understood a quite exceptional situation which imperils or might imperil the normal operation of public policy established in accordance with the lawfully expressed will of the citizens, in respect alike of the situation inside the country and of relations with foreign powers." [Judge Maridakis in the case of Lawless v Ireland (supra)].
(iii) ?????? "That various interrogation practices--In particular the so-called 'five techniques', which included wall-standing, hooding and deprivation of sleep and food held to be inhuman treatment. [European Human Rights Commission in the case of .The Republic of Ireland v. ,The United Kingdom)].
(h) TREATISES
(i) ???????? That the aggression may also take the form of an act short of war. When an aggression short of war is committed although a violation of law occurs, no crime against peace is perpetrated. [Please see the definition of the word 'aggression' adopted by General Assembly of the United Nations, 1974)].
(ii) ??????? That the threat of aggression could take the form of intimidation, troop concentrations or military manoeuvres near another State's borders, or mobilization for the purpose of exerting pressure on a State to make it yield to demands. [Please see Article. 16(2) of the 1991 Draft Code of International Law Convention)].
(iii) ?????? That Article 51 of the United Nations Charter permits self-defence solely when an armed attack occurs. While some commentators believe that customary international law does the same, the more common opinion is. that customary right of self-defence is also accorded to States as a preventive measures (taken in "anticipation of an armed attack and to merely in response to an attack that has actually occurred").
515. [For above paras. (i) to (iii) please see War and Self Defence by Youram Dinstem (second Edition)].
(iv) ?????? That under Article 51 of the United Nations Charter, inter alia there are two categories of war, namely, first, wars of agitation, infiltration and subversion carried on by proxy through national liberation movements; and, second nuclear wars involving the instantaneous use, in a first strike, of weapons of near paralyzing destructiveness. [Cases and Materials on International Law 1995-96 by Martin Dixon]. '
(v) ??????? That a Constitution serves to protect the people against arbitrary power; that purpose is not to legislate in details but to set limits on the otherwise plenary power of the Legislature , ? However, the rights guaranteed by a Constitution are not so absolute that they may be exercised under all circumstances, and without any qualification, but, like other rights, must always be exercised with reasonable regard for the conflicting rights of others. Constitutional guaranties are not immune from regulation or limitation in the interest of the common good (Corpus Juris Secundum, Vol. l6).
(vi) ?????? That "Whatever be that form of Government, emergent situations are bound to arise in any country, owing to various factors like war, economic or financial breakdown, which call for immediate measures to be taken by the Government to safeguard the stability of the country or the safety of the citizens, which, in order to be adequate, must be different from or in addition to the normal system of administration ... ... .. ... ... ... ... ... .. ... ... ... ... ..A satisfactory solution of the problem can, therefore, be had only if extraordinary powers are available to the Government to meet such emergencies with the least encroachment upon the rights and liberties of the citizens." [Basu's Commentary on the Constitution of India, Sixth Edition, Vol. N)].
(viii) That "This, when reduced to its last analysis, comes to this: that, because a particular department of the Government may exert its lawful power with the object or motive of reaching an end not justified, therefore, it becomes the duty of the judiciary to restrain the exercise of a lawful power wherever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that, under our Constitutional system, the abuse by one department of the Government of its lawful powers is to be corrected by the abuse of its powers by another department." [The legislative powers of the State of American Union by Thomeas M. Cooley, Eighth Edition)].
516. (viii)That "A certificate of the Secretary of State for Foreign and Commonwealth Affairs to the effect that the Crown is still at war with a foreign State is conclusive evidence that the state of war is not at an end." [Halsbury's Law of England, fourth Edition].
(ix) ?????? That "Although the term (i.e. Emergency) has been defined as meaning the act of emerging, it is more commonly used and generally understood to mean a sudden occurrence or exigency, implying imminent danger which leaves no time for deliberation, or a sudden or unexpected necessity requiring speedy action; and, as a generalization, it is a sudden or unexpected event which creates a. temporarily dangerous condition usually necessitating immediate or quick action." (Corpus Juris Secundum, Vol. 29-A).
(x) ??????? That "Thus, even in grave emergencies there are limits beyond which a State may not go." [Constitutional and Administrative Law by Wade and Bradly, l lth Edition)].
(xi) ?????? That "Today when long-range missiles with nuclear war heads are able to devastate whole regions and countries the difference between actual and imminent attack because negligible." [Manual of Public International Law, edited by Max Sorensen)].
(xii) "Inter arma silent leges.---When there is an armed conflict, the laws remain silent.
517. "We have good reason to realise the truth of Cicero's adage that amidst the clash of arms the laws are silent. The still small voice of the law is quelled while men kill and destroy in defiance of its dictates" Lord Macmillan." [Fundamental Rights and Constitutional Remedies in Pakistan by Mr. S. Sharifuddin Pirzada]. .
(xiii) "There exists in English law a general principle that the Courts will not adjudicate upon the transactions of foreign sovereign states ...it seems desirable to consider this principle ...not as a variety of 'act of State' but one for judicial restraint or abstention." [Lord Wilberforce in Buttes Gas and Oil Co. v. Hammer International Law, Fourth Edition, by Malcolm M. Shaw].
(xiv) That "In the introduction to its consideration of the Constitution's fundamental rights provisions the 1996 Constitution, that "most members of the new judiciary had been schooled in the British tradition of parliamentary sovereignty and were not at ease with concepts of fundamental rights and powers of judicial review of legislation." [Ireland's Evolving Constitution, 1937-97 Collected Essays edited by Tim Murphy and Patrick Twomey].
(xv) That inter alia European Convention in the case of 'public emergency' permits a State to take derogatory measures in deviation of the covenants subject to the condition that the rule of proportionality is observed, meaning thereby, that the derogation should be to the extent required in the given situation or circumstances and not more.
(xvi) That a suspension of the right to enforce a fundamental right cannot be construed as empowering the Legislature to enact laws inconsistent with any fundamental rights which are not suspended. [Emergency Powers and the Courts in Pakistan and India by Omar Imtiaz)].
(xvii) That in U.S.A. there is no emergency provision in the Constitution. Nevertheless the judiciary has aided the expansion of federal power in times of war as well as for its preparations and for subsequent rehabilitation after its termination by a liberal expansion of the federal power relating to war. However, after the termination of war the expansion of federal power is brought under closer judicial control while the Court would uphold Federal Legislature which is necessary to remedy the condition which followed from the mobilisation of men and materials for successful prosecution of the war, the propriety of the exercise of power after termination of hostilities is open to judicial review and it cannot be allowed to continue indefinitely or so long as ,the economic effects of war are felt. (Comparative Federatlism by Dr. (Justice) Durga Das Basu, 1987 Edition).
518. (xviii) "Not all 'emergencies' justify an official state of emergency and the suspension of fundamental rights. Only those which threaten the life of a nation require exceptional measures." [Rights and Constitutionalism, The New South African Legal Order, edited by Dawid Van Wyk, John Dugard, Dertus de Villers, Dennis Davis)].
(xix) Relevant portion of the International Law Association Report of 1986 reads as under:-
519. "However, general agreement exists on the following basic principles: Severity of cause, defined generally as 'threatening the life of the nation; good faith on the part of the imposing Government; proportionality (relating to geographic scope, duration, and choice of measures strictly required by the exigencies of the situation); proclamation or notification; non-derogability of certain rights; respect for other international obligations; and non-discrimination."
37. From the above resume of the case-law and the treatises, the following features emerge:-
(i) ? That the origin of the war power is founded on the Latin Maxim inter arma silent leges (i.e. when there is an armed conflict, the law remains silent). Lord Atkinson in the case of The King v. Halliday (1917 AC 260) had put it differently by observing that "however, precious the personal liberty of the subject may be, there is something for which is may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement." Some jurists justified the war power by stating that when the State is engaged in a life and death struggle, no one can demand that it refrains from taking special emergency measures; salus rei publicae suprema lex est.
520. The concept of having war power without actual war on account of public emergency appears to be somewhat modern. In the Greek case Human Rights Commission defined the characteristics of a public emergency as under:-
(i) ???????? It must be actual or imminent
(ii) ??????? Its effects must involve the whole nation
(iii) ?????? The continuance of the organised life of the community must be ?? threatened.
(iv) ?????? The crisis or danger must be exceptional, in that the moral measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.
521. Whereas Judge Maridakis in the case of Lawless v. Ireland (supra) described a public emergency by observing that "by public emergency threatening the life of the nation it is to be understood, a quite exceptional situation which imperils or might imperil the normal operation 'of public policy established in accordance with the lawfully expressed will of the citizens, in respect alike of the situation inside the country and of relations with foreign powers".
(ii) ??????? That there is no emergency provision in the Constitution of U.S.A. of the nature of Articles 232 and 233 of our Constitution. In the result, there is no possibility of Constitutional distribution of powers being superseded by the Union on the ground of war or like emergency. However, the U.S. Judiciary has aided the expansion of the federal power in times of war as well as for its preparation and for subsequent rehabilitation after its termination by a liberal expansion of the federal Power relating to war. The U.S. President as the Commander-in-Chief has the power to initiate as well as to conduct the war. However, War Power Act passed by the Congress in 1973 has set time frame within which the authorisation of the Congress must be obtained by the President. The above war power inter alia includes the power to determine the cessation of hostilities and suspension of writ of habeas corpus in case of invasion.. The above war power is not subject to judicial review. In Australia arid Canada also there is no specific ? emergency provision in their Constitution. The Federal Legislature by enactments empower the Governments to take necessary measures.
(iii) ?????? In U.K. there is no written Constitution, the Parliament by legislation confers war power on the Executive besides the power derived under the common law. The Courts do not interfere with the exercise of the above power.
(iv) ?????? In contrast to the above, in India and Pakistan, Constitutions expressly provide specific provisions for the emergency on account of war, external aggression and internal disturbance beyond the power of a Provincial Government to control. In India by the Constitution (Forty Fourth Amendment) Act, 1978, the words "internal disturbance' have been substituted by the words "armed rebellion" and some other important amendments having far-reaching effects have also been made, some of which will be referred to hereinafter at the appropriate stage.
522. In Pakistan once an emergency is imposed it has inter alia the following far-reaching consequences flowing therefrom:
(a) ??????? That under clause (2) of Article 232 of the our Constitution, the Parliament acquires the power to make law for a Province or any part thereof in respect of any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List;
(b) ??????? that the executive authority of the Federation is extended as to include giving of direction to a Province as to the manner in which the executive authority of the Province is to be exercised;
(c) ??????? that the Federal Government by an order can assume to itself or direct the Governor of a Province to assume on behalf of the Federal Government or any of the functions of the Government of the Province etc.;
(d) ??????? that the Parliament becomes empowered to extend its life by one year;
(e) ??????? that once a Proclamation of Emergency is approved in the joint session of the Parliament in terms of clause (7) of Article 232, there is no mechanism provided for in the Constitution to bring an end to the same except by revocation at the sweet-will of the Government in power:
(f) ???????? that by virtue of clause (1) of Article 233 the State acquires the power to make any law or to take any executive action in deviation of the Fundamental Rights contained in Articles 15, 16, 17, 18, 19 and 24 of the Constitution;
(g) ??????? that in case the President passes an order under clause (2) of Article 233 the enforcement of the Fundamental Rights mentioned in the order through the Courts stand suspended. In other words, not only the citizens are denied their Fundamental Rights but the Courts' power to enforce the same is also denuded.
38. In my view, the case-law of foreign jurisdiction, particularly of U.S.A. U.K., Australia and Canada, cannot be of any help to determine the scope of above Articles 232 and 233 of the Constitution except to the extent that the same indicate that the Courts press into service the doctrine of judicial restraint or abstention.
523. However, they have carved out a distinction between war time when the country is engaged in actual armed conflict and the war time when the armed hostility has ceased. In the latter case, the expansion of federal power is brought under closer judicial control while the Court would uphold federal legislation, which is necessary to remedy the conditions which followed from the mobilisation of men and materials for successful prosecution of the war, the propriety of the exercise of power is open to judicial review.
524. It may be pertinent to point out that Article 4 of the International Covenants of Civil and Political Rights, Article 15 of the European Convention on Human Rights and Article 27 of the American Convention on Human Rights have also provided a check on the unfettered and unbridled public emergency power quoted hereinabove in para. 39 inasmuch the same permits a State to take derogatory measures in deviation of the covenants subject to the condition that the rule of proportionality is observed, meaning thereby, that the derogatory steps/actions should be to the extent required by the exigencies of the situation provided such measures are not inconsistent with their other obligations under the international law. It has also been provided that there cannot be any derogation in respect of certain Articles of covenants, for example, clause (2) of Article 27 of the American Convention of Human Rights, 1967 provides that the foregoing provision (i.e. clause (1) which permits derogation in times of war, public danger or other emergency) does not authorise any suspension of the following Articles:-
(i) Article 3--right to judicial personality;
(ii) Article 4--right to life;
(iii) Article 5--right to humane treatment
525. (iv Article 6--freedom from slavery
(v) Article 9--(Freedom Article 4 of the ICCPR);
(vi) Article 15--of the ECHR;
(vii) Article 27--of the` ACHR
39. As regards Pakistani case-law and the cases of the Indian origin, there seems to be unanimity on the following points:-
(i) That the satisfaction provided for in clause (1) of Article 232 of our Constitution and clause (1) of Article 352 of the Indian Constitution is e the subjective satisfaction of the President.
(ii) ??????? That the above subjective satisfaction of the President is final subject to judicial review to the limited extent referred to hereinbelow.
(iii) ?????? That the satisfaction of the President is a condition precedent to the exercise of power and if it can be shown that there was no satisfaction of the President at all, or that the satisfaction was absurd or perverse or mala fide or based on extraneous or irrelevant grounds, it would be no satisfaction. [Minerva Mills Ltd. (supra)].
(iv) ?????? That it is for the President to decide as to when a proclamation of emergency is to be revoked. However, it may be pointed out that after the enactment' of The Constitution (forty fourth Amendment) Act, 1978 with effect from 20.-6-1978 in India.? the position has changed inasmuch as besides the president the parliament ? can also revoke the proclamation by passing a resolution in the manner provided for in the amending provision.
(v) ??????? That it is for the Government to decide and not for the Court what steps/actions are required to be taken to meet the emergency including as to the dispensation of armament and of the armed forces.
(vi) ?????? That in the case of Sabir Shah v. Federation of Pakistan (supra) this Court while construing clause (2) of Article 236 of the Constitution held that the court will be competent to examine, whether a proclamation issued under the above provision is without jurisdiction, coram non judice or mala fide. More or less the same view has been taken by the Indian Supreme Court in the case of S.R. Bominal (supra) in respect of the corresponding Article 356 of the Indian Constitution.
40. It will not be out of context if at this juncture I may point out that prior to the Independence of India the proclamation of emergency was regulated inter alia under section 72 of the India Act, 1919, and then under section 102 of the Government of India Act, 1935. In some of the cited cases reliance has been placed on the Privy Council judgments. The approach of the Privy Council was somewhat different inter alia for the reasons that there were no Fundamental Rights then available in India. In this regard, reference may be made to the case of Bhagat Singh v. Emperor (AIR 1931 PC 111) and the case of Emperor v. Benoori Lail Sharma and others (AIR 1945 PC 48).
526. In the first case the Governor-General of India issued a proclamation of emergency under section 72 of 'the Government of India Act, 1919. The petitioners filed habeas corpus petition. The matter was taken up by them through a petition for leave against the judgment of the Lahore High Court. It was contended by them before the Privy Council that the imposition of state of emergency was not warranted in terms of above section 72 of the Government of India Act, 1919. The above contention was repelled by the Privy Council as follows:-
527. "The petitioners ask this Board to find that a state of emergency did not exist. That raises directly the question who is to be the judge of whether a state of emergency'-exists. A state of emergency is something that does not permit of any exact definition: It connotes a state of matters calling for drastic action which is to be judged as such by someone. It is more than obvious that the someone must be the Governor-General and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance."
528. Whereas in the second case, which had arisen out of Federal Court of India's judgment in the case of Emperor v. Benoari Lail Sharma and others (AIR 1943 PC 36), wherein it was held that notwithstanding the imposition of emergency so long as sections 5, 28 and 29 of the Code of Criminal Procedure had not been altered, repealed or amended by the competent Legislature or other competent Authority, they must govern every criminal proceedings both as regards the Tribunal by which the crime was to be tried and as to the procedure to be followed including the right of appeal, revision etc. The Privy Council, while setting aside the above judgment of the Federal Court of India, made the following observation as to the imposition of emergency:-
529. "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. Their Lordships entirely agree with Rowland, J.'s view that such circumstances might, if necessary, properly be considered in determining whether an emergency had arisen; but, as that learned Judge goes on to point out, and, as had already been emphasised in the High Court, the question whether an emergency existed at the time when an Ordinance is made and promulgated is a matter of which the governor-general is the sole Judge. This proposition was laid down by the Board in 58 IA 169 and is plainly right." "
41. It may be observed that Cornelius C.J. in the case of Malik Ghulam Jilani (supra) has succinctly highlighted the difference as to the jurisdiction of the Courts in relation to the executive actions between the period when the Government of India Act, 1935, was in force and the period commencing after the enforcement of late 1962 Constitution with reference to Article 98 thereof as follows:-
530. "In the conditions existing under the Government of India Act, 1935, a conclusion such as that reached by the Judicial Committee in Sibnath Banerji's case was tenable. It was a period in which the control by -the Courts of the exercise of public power by the authorities was at a minimum. The Central Government of India was in respect of matters of the highest importance, not an independent Government. Through the machinery provided by the Government of India Act, 1935, its action and operations were in those highly important respects, placed under the control of the British Government at Whitehall. It was not conceivable that in relation to a law of such critical importance as the Defence of India Act attracting in many respects the powers of the Governor-General in his discretion, such powers being directly controlable by the Secretary of State of India, there could be any scope for the intervention of the Courts in India to control the exercise of such powers. Therefore, the view taken in Sibnath Banerji's case by the Judicial Committee can be placed on a parallel with the view of the House of Lords in the case of Liversidge quoted above, where the majority view was largely based on the consideration that the order of detention having been made by a high officer of the State, namely, the Home Secretary, it should be presumed that he acted under the relevant provision in the Defence Regulations, i.e., that he had acted on reasonable satisfaction.
531. Under the Constitution of Pakistan a wholly different state of affairs prevails. Power is expressly given by Article 98 to the Superior Court to probe into the exercise of public power by executive authorities, how high so ever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction' for imposing restraints on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all its contents through this process and the Courts would cease to be guardians of the nation's liberties. It is, therefore, impossible to construe the relevant provisions in the Defence of Pakistan Ordinance in the manner adopted by the Judicial Committee in the case of Sibnath Banerji for interpreting the somewhat similar provisions in the Defence of India Act and Rules. Clause (x) of subsection (2) of section 3 must be construed as providing the specific guidances which control any rules as to apprehension and detention that are to be made under the power given by subsection (1) of section 3. "
532. In this view of the matter, the reasoning found favour with their lordships in the Privy Council cases for holding that the Courts had no jurisdiction to examine the validity of the imposition of emergency on the executive action under the emergency law, could not provide proper guideline for interpreting Articles 232 and 233 of the Constitution. Even otherwise, the approach of the English judiciary is somewhat different as observed by the 1996 Constitution Review Group on Ireland Constitution that most members of the new judiciary had been schooled in the British tradition of parliamentary sovereignty and were not at ease with the concepts of fundamental rights and powers of judicial review of legislation [Ireland Evolving Constitution, 1937-97 Collected Essays edited by Tim Murphy and Patrick Twomey (supra)].
42. The learned counsel for the petitioners have referred to a number of dictionaries to show the meanings of the words inter alia "satisfied", "satisfy", "external" and "aggression", the definitions of which have been quoted hereinabove. The words "satisfied" and "satisfy" indicate that the same connote inter alia free from anxiety, doubt, perplexity, suspense or uncertainty or a mind which has reached a clear conclusion. Whereas the word "external" inter alia means apparent, visible from outside, physical or corporeal; whereas the word "aggression" has been defined inter alia as means inroad, invasion or encroachment of rights of others. It may be observed that Cornelius, C.J. in the case of Malik Ghulam Jilani (supra), while construing the word "satisfaction" used in Rule 32 of the Defence of Pakistan Rules, pointed out that the requirement of satisfaction contained in the above Rule involves the exercise of judgment in relation to a number of relevant factors and that belief would also be necessary as to the existence of certain facts and potentialities that they possess danger to public order. Whereas Hamoodur Rehman, J. (as he then was) in the case, of Mir Abdul Baqi Baloch (supra) highlighted the difference between "being satisfied" and "suspecting upon reasonable grounds" by observing that the former connotes a state of mind bordering on conviction introduced by the existence of facts which have removed the doubts, if any, from the mind and taking it out of stage of suspicion.
533. Keeping in view the definitions of the above words and the construction placed by two eminent Chief Justices of this Court on the words "satisfaction" and "satisfied", it is evident that before the President can issue a proclamation under clause (1) of Article 232 of the Constitution, his satisfaction as to the existence of a grave emergency in which the security of Pakistan or any part thereof is threatened by war or external aggression or by internal disturbance beyond the power of a Provincial Government to control, should be based on proper application of mind which involves exercise of judgment in relation to a number of relevant factors having nexus with the objects mentioned in the aforesaid clause of Article 232 of the Constitution. The judgment should be founded on a state of mind bordering on conviction introduced by the existence of facts which have removed the doubts, if any, from the mind of the President keeping in view far-reaching consequences which flow from the imposition of emergency under the provisions of the Constitution highlighted hereinabove in para. 37.
43. After having dealt with the legal position, I may now refer to the question, as to whether the President was justified in issuing the Proclamation under clause (1) of Article 232 of the Constitution in the evening of 28th May, 1998. The Federation in support of the impugned Proclamation has placed on record Press Releases/Statements of the Government functionaries during the period commencing from 10-3-1998 to 20-6-1998 including the opening remarks in the Senate on India's nuclear tests on 20-5-1998, press clippings of the national and international media inter alia containing the reaction of the world on the detonating of nuclear devices by India on 11-5-1998 and 13-5-1998, pamphlet in the form of a booklet containing a wide-ranging assortment of international press comments on the situation created by India's nuclear explosions and Pakistan's response (the same includes extracts of newspapers /magazines etc. from Saudi Arabia, Egypt, Gulf News, Iran, Malaysia, Bangladesh, Sri Lanka, India, Korea, Australia, Newzealand, Japan, People's Republic of China, U.S.S.R., United States, Canada, United Kingdom, France, Germany and Netherlands), an Article in the Newsweek of June 8, 1998, analysing the situation, which emerged after detonating of nuclear devices by India and Pakistan, Pakistani newspapers clippings containing the various statements of the political leaders and articles as to the effect of India's detonating of nuclear devices. They also contain the demand of the various political leaders of Pakistan including Mohtarma Benazir Bhutto, Leader of the Opposition, and journalists calling upon Pakistan's Government to carry out the tests of nuclear devices. Qazi Hussain Ahmed, Amir of Jamat-i-Islami set May 30, 1998 as the deadline for the Pakistan Government to carry out above test or to face anti-Government agitation (newspapers clippings of daily Dawn, Karachi dated 22-5-1998 at page 120 of Paper Book Vol. 8--also numbered as R-I).
534. Besides the above documents containing in one file, the Federation also filed a brief on law and order situation in the country prepared by the Ministry of Interior, Government of Pakistan, alongwith the statement showing bomb explosions in Pakistan and persons killed month-wise and Province-wise (at pages 150 to 154 of paper book marked as Vol. 7), minutes of the joint sessions of the Parliament of 6th June, 1998, containing inter alia the speeches of the Prime Minister of Pakistan, Mian Muhammad Nawaz Sharif, and Raja Muhammad Zafarul Haq, the Leader of PML (N) in the Senate, dealing with the situation, which necessitated the imposition of Emergency. In addition to the above material a file containing some sensitive reports was shown to the members of the Bench in Chamber at Lahore by the learned Attorney-General, Ch.Muhammad Farooq, and Mr. S. Sharifuddin Pirzada during the hearing of the above Constitution Petitions. .
535. On the other hand, the learned counsel for the petitioners, have filed a number of newspaper clippings of daily newspapers including daily Dawn, Lahore Edition of 9th June, 1998, attributing a statement to the Prime Minister of Pakistan at Jeddah on 8-6-1998, where he allegedly said that Pakistan's defence had become impregnable and the nation was now capable of defending itself without any outside help. They also contain the statements of the Federal Ministers and Parliamentary Secretaries giving contradictory reasons for the ? imposition of Emergency, for example; Dawn Karachi of 9-6-1998 attributed a 3tatpthent td Mr. Mushahid Hussain, Information Minister, allegedly stating that the proclamation of Emergency had hothing to de With the domestic politics and that the sable had been imposed purely for economic reasons. The daily 'Dawn' Karachi of 11-6-1998 attributed a statement to Raja Zafarul Haq that while defending the imposition of Emergency in his winding up speech as the Leader of the House in Senate said that the flight of capital in such a situation was imminent, therefore, the Government decided to invoke the Emergency clause of the Constitution to check the flight of capital; an alleged statement attributed to Mr. Zafar Ali Shah, M.N.A. allegedly saying that the emergency in the country was imposed in perception of threat from the Balochistan Government, which was opposed to nuclear explosions and it was feared that scientists could be arrested under the Explosives Act by the provincial administration (appeared in the News International dated 9-6-1998).
536. The minutes of the proceedings of the joint session of the Parliament have also been filed. The Prime Minister in his speech inter alia stated as follows:-
537. A perusal of the above-quoted extracts from the speeches of the Prime Minister and the Leader of the House in the. Senate indicates that the main reason for the imposition of emergency was the imminent danger of Pakistan's being subject to external aggression though certain other reasons have also been stated and the effects of the imposition of the Emergency have been highlighted.
44. I have gone through the entire material placed by the Federation and shown to the members ,of the Bench in Chamber and the newspaper clippings produced by the petitioners. It is true that seemingly in some of the newspapers the statements attributed to the Prime Minister, the Federal Ministers and the Parliamentary Secretaries appear to contain contradictory grounds. However, from the material produced by the Federation, the following facts have emerged:
(i) That after the successful detonating of nuclear devices by India on 11-5-1998 and 13-5-1998, the Indian Prime Minister and some of the Federal Ministers issued belligerent and hostile statements, inasmuch as the Interior Minister of the Union of India Mr. Advani visited occupied Jammu and Kashmir and hinted that India was going to take military action in order to oust Pakistan from the Azad Jammu and Kashmir.
(ii) That Pakistan had received information inter alia from her friendly countries that between the night of 27th and 28th May, 1998, an attack was to be mounted before dawn on our nuclear installations. In the behalf, it may be pertinent to reproduce an extract from an article in Bi- weekly Al-Shaab (Cairo) of 15th May, 1998. Para. 22 of the aforesaid pamphlet containing world press reaction to India's testing of nuclear devices on 11th and 13th May, 1998, reads as under:-
538. "Israeli circles have informed Washington that Tel Aviv would attack Pakistan by missiles and air raids if Pakistan exploded a nuclear device in response to India's nuclear explosion. India is scoffing at international reaction and sanctions, and is posing a threat to Pakistan's security, Israeli Prime Minister Natanyahu has expressed hi; satisfaction at the Indian explosion and has admired the Indian Prime Minister for doing the right thing."
(iii) ?????? that the international press besides highlighting the India's above intention also pointed out that in fact India had not accepted Pakistan's existence.
(iv) ?????? That there was a lot of hostile activities going on behind the Line of Control and there was tension at the Control Line and a lot of cross firing between Indian and Pakistani troops, inasmuch as on 27th May, 1998, Pakistan's Chief of Army Staff visited the Line of Control to assess the situation himself.
(v) ??????? There were several meetings among the President, the Prime Minister and the Chief of Army Staff after India's detonating of nuclear devices.
(vi) ?????? That it could not have been comprehended what would be the world's reaction to the Pakistan's successful detonation of the nuclear devices.
45. Messrs Shahzad Jehangir and Muhammad Ikram Chaudhry, learned counsel appearing in two of the aforementioned Constitution Petitions, had also candidly submitted that in the situation obtaining prior to the successful detonating of nuclear devices by Pakistan, one could urge that there was imminent danger of external aggression. If that was so, it cannot be contended that the above danger was eliminated in the evening of 28th May, 1998, as was urged by the above learned counsel. In any case, this Court cannot sit as a Court of appeal for the purpose of deciding, whether the material which was available before the Federation and the President was sufficient to justify the issuance of Proclamation as the sufficiency of the material cannot be gone into by this Court in these proceedings as held by my learned brother Saiduzzaman Siddiqui, J. in Sabir Shah's case (supra). It is sufficient to hold that prima facie there was some material on the basis of which the, President could issue the impugned Proclamation of Emergency on account of imminent danger of external aggression. However, the same did not warrant passing of an order under clause (2) of Article 233 of the Constitution suspending the enforcement of the Fundamental Rights for the reasons recorded hereinafter while dealing with the above issue.
539. It will not be out of context to mention that although the learned Attorney-General invited our attention to the law and order situation obtaining in Sindh and certain sectarian killings in Punjab but he has not been able to demonstrate that the same warranted imposition of Emergency and not an action under Article 145 or Article 146 of the Constitution particularly in Sindh.
540. I may point out that in clause (1) of Article 191 of late Constitution of 1956 and sub-clause (b) of clause (1) of Article 30 of the late Constitution of 1962, the imminent danger to the economic life of Pakistan was a ground on which Emergency could be imposed but the same was not included in the Interim Constitution of 1972, nor it has been included in the present Constitution of Pakistan. However, it is not necessary to deal with the effect of the above omission. Since this ground has not been pressed into service in the impugned Proclamation of Emergency though referred to in the above speeches of the Prime Minister, Mian Muhammad Nawaz Sharif, and Mr. Raja Zafarul Haq made in the joint session of the Parliament.
541. In my view the validity of the impugned Proclamation of Emergency prima facie is to be examined on the basis of what has been stated therein, and not what was stated by the Prime Minister and some of the Ministers of his Cabinet, though their statements may have some relevancy in order to appreciate the situation obtaining at the time of imposition of the Emergency and the same may also reflect bona fide or mala fide.
542. I fully subscribe to Mr. Hamid Khan's submission that simpliciter statements of the political leaders of Indo-Pak cannot furnish a sound basis for', imposition of Emergency, which has far-reaching consequences. However, m the case in hand, besides the statements of some of the political leaders of India, there is material to demonstrate that at the relevant time there was "animus belligerendi" on the part of the Indian Government.
46. I may take up the two remaining questions together which I have framed hereinabove in para. 18, namely, whether keeping in view the various provisions of the Constitution and the situation obtaining after detonating j nuclear devices by Pakistan, an order by the President under clause (2) of', Article 233 of the Constitution was warranted; and whether this Court at a' subsequent stage can review the continuation of the Emergency. In this regard, it may be pertinent to point out that in India and Pakistan, till the present decision, the view obtaining on the above two questions was that the Courts had no jurisdiction to examine, as to whether the President was justified to pass an order for suspending certain fundamental rights under Article 359(1) of the Indian Constitution and Article 233(2) of our Constitution. There was also consensus on the above second question, namely, that the Courts had no jurisdiction to examine. whether the continuation of emergency was justified after the cessation of hostilities several years back. The latter view seemingly was based on the rationale that after the cessation of hostilities, it was for the Government concerned to decide, how long it would take to remedy the damages caused to the country by the war and that the Courts were not equipped to assess the above situation. The above rationale is not applicable to the case in hand as no war or external aggression had taken place; thus, the case-law cited on this aspect is distinguishable.
543. It may also be pointed out that the above views run counter to the Fundamental Rights guaranteed by the Constitution and the aforesaid International Covenants of Civil and Political Rights, European Convention on Human Rights and American Convention on Human Rights. In my view, a distinction is to be made between an emergency which is imposed when country is engaged in an actual war or is subjected to actual external aggression and when the same is imposed on account of imminent danger thereof for the purpose of suspension of fundamental rights and continuation of the emergency. In the former case, the above Latin maxim inter arma silent leges (i.e. when there is an armed conflict, the law remains silent) or that the national success in the war is to be ensured in order to escape from national plunder or enslavement even if the personal liberty and other rights of the citizens are sacrificed as observed by Lord Atkinson in the case of King "v. Halliday (supra) would be applicable. But in the latter case the rule of proportionality is to be followed as propounded by .some of the eminent authors and adopted under above Article 4, of the International Covenants of Civil and Political Rights. Article 15 of the' European Convention of Human Rights, 1967 i.e. a public emergency permits a State to take derogatory measures in derogation of the covenants subject to the condition that the rule of proportionality is observed meaning thereby, that the derogatory steps/actions should be to the extent required by the exigencies of the situation provided such measures are not inconsistent with their other obligations under the international law. The above view is reinforced by the report of International Law. Association, 1986 referred to hereinabove in para.36 (xix), that while imposing emergency following factors should be considered:-
(i) ???????? severity of cause defined generally as threatening the life of the nation;
(ii) ??????? good faith on the part of the imposing Government;
(iii) ?????? proportionality (relating to geographic scope, duration, and choice of measures strictly required by the exigencies of the situation);
(iv) ?????? proclamation or notification;
(v) ??????? non-derogability of certain rights;
(vi) ?????? respect for other international obligations
(vii) non-discrimination.
544. The rule of proportionality is also in consonance with the view obtaining in U.S.A. and Australia etc. namely, that a distinction has been drawn V between the power of judicial review during actual war and after the cessation of hostilities already referred to hereinabove. Reference may again be made to the observation of Latham, C.J. in the case of Australia Communist Party (supra) that "the Court in its decisions applied a rule that there must be a real and W substantial connection between the legislation and the defence situation so created in order that the legislation could be valid".
47. In the present case the President passed firs: order under clause (2) of Article 233 of the Constitution on 28-5-1998 providing the right to move any Court including a High Court and the Supreme Court for the enforcement of all Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and all proceedings pending in a Court which were for the enforcement or involving determination of any question as to the enforcement of any of the said rights, shall remain suspended for the period during which the said Proclamation was to remain in force.
545. After that on 13-7-1998 the President passed another order under the above provision of the Constitution providing that in the said order (i.e. the order of 28th May, 1998), in the third paragraph for the words "all the Fundamental Rights conferred by Chapter 1 of Part II", the words and figures "the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25" shall be substituted. It may be mentioned that the wording of clause (1) of Article 233 of the Constitution indicates that it is not mandatory that whenever a Proclamation of Emergency is issued under clause (1) of Article 232 of the Constitution, an order under the above clause is to follow. The use of the words "for the enforcement of such of the Fundamental Rights ... ..." as may be specified in the Order shows that the President is required to apply his mind to the question, whether any order under above clause is warranted. If so, to what extent. He is expected to make efforts to see that there should be minimum disturbance of the Fundamental Rights of the citizens and the enforcement of those Fundamental Rights is to be suspended which have direct nexus with the object to meet the situation mentioned in clause (1) of Article 232 successfully. -In the aforesaid first order dated 28-5-1998 the enforcement of all the Fundamental Rights including relating to prohibition of slavery and freedom of religion was suspended. This demonstrates that the above order was passed on the assumption that the same was mandatory. In the second order dated 13-7-1998 certain Fundamental Rights have been omitted.
546. ' It may be observed that the effect of issuance of a Proclamation under clause (1) of Article 232 is that by virtue of clause (1) of Article 233 of the Constitution, the State is authorised to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution.
547. The above second order dated 13-7-1998 under clause (2) of Article 233 of the Constitution in fact added only three Articles, namely Article 10 (relating to the safeguard as to the arrest and detention), Article 23 (pertaining to provisions a: to property) and' Article 25 (relating to equality of citizens), which are hedge( with qualifications. It may be stated that there are more than one statute to cater for the arrest and detention of undesirable elements. Article 24 which guarantee: the right of property is already covered by the aforesaid clause (1) of Article 23? and Article 25 pertains to the equality of citizens but the same is subject to reasonable classification as held by this Court inter alia in the case of I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041. Prima facie, there was no need of any order under clause (2) of Article 233 of the Constitution.
548. 48 ??????? I am prompted to take above view inter alia for the following reasons:--
(i) ???????? That the above view fits in with the above modern jurisprudential theory of proportionality.
(ii) ??????? That as a rule of interpretation, the Courts should make efforts to preserve the Fundamental Rights of the citizens while construing the Constitutional provisions. This aspect, I intend to deal with hereinafter while touching upon the aforesaid second question in issue.
(iii) ?????? That those who have taken oath to protect the Constitution, particularly, the Judges of the Supreme Court and the High Courts are bound by their oath and duties to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects, save from all defects or harm and to stand firm in defence of its provisions against attack of any kind as held by this Court in the case of Fazalul Quader Chaudhry (supra), in which the view taken is in line with the above Constitutional mandate.
(iv) ?????? That even in spite of suspension of the enforcement of certain Fundamental Rights under clause (2) of Article 233 of the Constitution, Article 4 thereof remains fully operative which lays down that "To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
549. In particular-
(a) ??????? no action detrimental to the life, liberty, body, reputation or property of ? any person shall be taken except in accordance with law;
(b) ??????? no person shall be prevented from or be hindered in doing that which is ????? not prohibited by law; and
(c) ??????? no person shall be compelled to do that which the law does not require him to do." as held by Salahuddin Ahmad, J. of this Court in the case of Manzoor Ilahi (supra).
550. I am, therefore, of the view that the suspension of enforcement of the above Fundamental Rights when under clause (1) of Article 233 the State had already acquired power to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution, was not justified and warranted by law and, thus the same was of no legal effect.
49. Adverting to the above second question, namely, whether this Court has jurisdiction to review or re-examine the continuation of emergency at any subsequent stage if the circumstances so warrant, it may be pointed out that in the past the national emergencies in India and Pakistan were imposed on account of actual wars. Mrs. Indra Gandhi, the then Prime Minister of India, on 26-6-1975 purported to get the emergency imposed by the President under Article 352(1) but the Indian Supreme Court in the case of Waman Rao v. Union of India (supra) held that the earlier Proclamation of Emergency issued on 3-12-1971 was very much in the field when the above proclamation of emergency was issued and, therefore, it was of no legal effect. It appears that in India first time emergency was imposed on 26-10-1962 when there was armed conflict between India and China. The above emergency was revoked on 10-1-1968 (i.e. after 5 years, 2 months and 14 days). The second emergency was imposed on 3-12-1971, which was revoked on 21-3-1977 (i.e. after over 5 years). Whereas in Pakistan the proclamation of emergencies operated as under:-
(i) From 27-3-1955 to 23-3-1956,
(ii) From 6-9-1965 to 25-3-1969 when the Martial Law was imposed by General Yahya Khan ... ...
(iii) ?????? From 23-11-1971 emergency continued because of Article 280 of the Constitution till 15-9-1977 when General Zia-ul-Haq revoked the above proclamation but the country remained under Martial Law and the Fundamental Rights remained suspended up to 30-12-1985.
551. Mr. Hamid Khan, learned counsel for one of they petitioners, has rightly pointed out that once an emergency is imposed in India and Pakistan, it remains in force as there is no mechanism provided in the Constitution for revocation of the same except at the sweet-will of the Government in power. However, India has provided in its Constitution to check the above unhealthy and undemocratic practice by The Constitution (Forty-Fourth Amendment) Act, 1978 (dated 20-6-1978) which inter alia provided as under:-
(i) ???????? That the President cannot issue a proclamation of emergency on the sole advice of the Prime Minister but the decision of the Cabinet is required
(ii) ??????? That the approval of the proclamation by each House is to be given within one month in place of two months as was earlier provided.
(iii) ?????? That the approval should not be by a simple majority as was earlier provided but by a majority of not less than half members of each House and a majority of two-third of those present in voting.
(iv) ?????? That a provision has been made that a proclamation of emergency would lapse within six months unless each House has approved its continuance by the aforesaid majority and this provision shall apply till the time proclamation remains in the field.
552. It may be pointed out that unfortunately no such amendment has been made in our Constitution, with the result that the present proclamation can remain in the field for years to come as it will depend upon the sweet-will of the Government in power, whosoever that may be, to advise the President for its revocation or not. The effects of remaining of the proclamation of emergency in the field have been highlighted by me hereinabove in para.37(iv). The most disturbing effect is that by virtue of clause (2) of Article 232 the Parliament can take over the legislative power as well as the executive power of Provincial 'P Governments, meaning thereby, that the Federating Units are denied their Provincial autonomy even to the extent guaranteed by the Constitution. In consequence whereof the feelings of deprivation are generated among the people of the Federating Units, which may impair the unity of the Federation. It seems that one of the reasons for the separation of the erstwhile East Pakistan was the imposition of the emergencies and the Martial Laws and the denial of the Fundamental Rights to the people. Up to the fall of Dacca the Pakistani people had enjoyed the Fundamental Rights for a total period of 7 years, 6 months and 14 days out of the total period of 24 years, 4 months and 2 days.
553. The question, whether a proclamation of emergency can be kept alive indefinitely has been touched upon by Lord Diplock in the Privy Council case, namely, in the case of The Cheng Poh alias Char Meh v. Public Prosecutor Malaysia (supra) referred to hereinabove in para.36 (c)(vi), wherein his lordship while dealing with the question, as to whether the Court was powerless to grant to the citizens remedy in case when the emergency was not revoked by the ruler, it was observed that "This, however, does not leave the Courts powerless to grant to the citizens a remedy in cases, in which it can be established that a failure to exercise his power of revocation would be an abuse of his discretion". According to the above case (as per curiam) a writ of mandamus can be issued against the Cabinet directing it to advise the ruler for revocation of emergency. The above view of Lord Diplock is in line with the observation made by Mr. Justice Jackson in the case of Woods v. Cloud W. Miller Co. (supra), in which he observed that "I would not be willing to hold that war powers may be indefinitely prolonged merely by keeping legally alive a state of war that had in fact ended".
554. Reference may also be made to the observation contained in the treatise under the title "Constitutional and Administrative Law by Wade and Bradly, 11th Edition (supra) referred to hereinabove in para. 36(b)(ix), wherein it has been observed that "thus even in grave emergencies there are limits beyond which a State may not go".
555. I may also advert to Article 237 of the Constitution of Republic of South Africa, 1996 produced by M/s. Hamid Khan and S. Sharifuddin Pirzada. The above Article deals with the state of emergency. Clause (3) thereof empowers the competent Court to decide on the validity of-
(a) ??????? a declaration of state of emergency;
(b) ??????? any extension of declaration of a state of emergency; or
(c) any legislation enacted or other action taken in consequence of a declaration of a state of emergency.
556. It may also be pointed out that sub-clause (c) of clause (5) provides a Table of Non-Derogable Rights.
557. The above provision of the South African Constitution, which seems to be one of the latest editions in the Constitutions of the world indicates the modern approach regarding imposition of emergency. the salient features appear to be the vesting of power in the competent Court to examine inter alia the validity and the continuation of the same.
50. I have held that though clause (1) of Article 233 of the Constitution does provide expressly for imposition of emergency on account of imminent danger of war or external aggression (which was separately provided for in our late Constitutions of 1956, 1962 and late Interim Constitution of 1972 highlighted hereinabove) but it covers both actual war or actual external aggression and imminent danger thereof, by placing dynamic and progressive interpretation on the above clause in view of the new concept of war and external aggression in line with the law enunciated in the case of Al-Jehad Trust (supra). The above rule of interpretation is more aptly applicable to the construction of the Articles of the Constitution at issue. If we were to take a contrary view which was canvassed by the learned Attorney-General at the Bar, the Federating Units, citizens and the Courts would be denied the rights and the power indefinitely. As observed all efforts should be made to preserve and to enlarge the scope of the Fundamental Rights while interpreting Constitutional provisions. In this regard, reference may be made to Dr. Nasim Hasan Shah, C.J. and my observation in the case of Mian Muhammad Nawaz Sharif (supra) as to the interpretation of Constitution particularly Fundamental Rights:-
558. Extract from the opinion of Dr. Nasim Hasan Shah, C.J.:
559. "I do not think that the preliminary objection that this petition is not maintainable can be sustained.
560. Fundamental Rights in essence are restraints on the arbitrary exercise of power by the State in relation to any activity that an individual can engage. Although Constitutional guarantees are often couched in permissive terminology, in essence they impose limitations on the power of the State to restrict such activities. Moreover, Basic or Fundamental Rights of individuals which presently stand formally incorporated in the modern Constitutional documents derive their lineage from and are traceable to the ancient Natural Law. With the passage of time and the evolution of civil society great changes occur in the political, social and economic conditions of society. There is, therefore, the corresponding need to re-evaluate the essence and soul of the Fundamental Rights as originally provided in the Constitution. They require to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with a vision to the future. Indeed, this progressive approach has been adopted by the Courts in the United States and the reason given for doing so is that:-
561. 'While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield a new and fuller import to its meaning: (Hurtade v. California--110 US 516)'."
562. Extract from the opinion of Ajmal Mian, J.:
563. "I may also observe that there is a marked distinction between interpreting a Constitutional provision containing a Fundamental Right and a provision of an ordinary statute. A Constitutional provision containing Fundamental Right is a permanent provision intended to cater for all time to come and, therefore, while interpreting such a provision the approach of the Court should be dynamic, progressive and liberal keeping in view ideals of the people, socio-economic and politico-cultural values (which in Pakistan are enshrined in the Objectives Resolution) so as to extend the benefit of the same to the maximum possible. This is also called judicial activism or judicial creativity. In other words, the role of the Courts is to expand the scope of such a provision and not to extenuate the same. The construction placed by me on Article 17 of the Constitution hereinabove in para. 16, seems to be in consonance with the above rules of construction. "
564. The above observations as to the interpretation of the Constitutional provisions are in line with what was observed by Cornelius, C.J. in 1967 in the case of Malik Ghulam Jilani (supra), the relevant portion of which has been quoted hereinabove.
51. Mr. Hamid Khan, learned counsel appearing for the petitioner in Constitutional Petition No. 17 of 1998, has invited our attention to the fact that this Court has gradually been taking progressive views as to the scope of the Fundamental Rights guaranteed under the Constitution for about a decade.
565. According to him, the above gradual process started from the case of Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416, wherein the concept of locus standi was diluted and some technicalities as to the filing of a petition under Article 184(3) of the Constitution before this Court were done away with. A liberal and progressive interpretation of Article 17 of the Constitution was adopted and it was held that subsections (1) and (6) of section 3-B and section 3-C of the Political Parties Act, 1962, requiring compulsory registration of political parties were violative of the above Article of the Constitution.
566. Then it was followed by the judgment in the case of Mrs. Benazir Bhutto v. Federation of Pakistan and another PLD 1989 SC 66, in which it was held by this Court that section 21 as amended by the Representation of the People (Amendment) Ordinance (II of 1985) and the Representation of the People (Fourth Amendment) Ordinance (VIII of 1985) was violative of the Fundamental Right contained in above Article 17 of the Constitution, in so far as it failed to recognise the existence of participation of the political parties in the process of election, particularly, in the matter of allocation of symbols, and thereby a broader construction was placed on the above Article.
567. Then we have the case of Darshan Masih alias Rehmatay and others v. The State PLD 1990 SC 513, in which this Court took cognizance on receipt of a telegram addressed to the Chief Justice alleging bonded labour and illegal detention by the employers in brick-kiln industry. The Court initiated investigation as to the allegations resulting in compromise between the bonded labourers and the accused party, whereby it was agreed that the labourers were at liberty to work or not to work at kilns and there was no compulsion for them and none was confined for compelling them to work. The various directives were also issued. Pursuant thereof inter alia Bonded Labour System (Abolition) Act, 1992 was enacted to eliminate the evil/menace of bonded labour.
568. This was followed inter alia by the judgment in the case of Muhammad Nawaz Sharif (supra), in which the extended meaning to clause (2) of Article 17 of the Constitution was given, inasmuch as, it was held that the right to form a political party and to be a member of a political party enshrined in the above clause does not culminate upon winning of the election but it is a continuous political process which includes the right of the petitioner to remain as a member of the National Assembly or as the Prime Minister till the time the life of the Assembly or the tenure of Prime Minister is terminated lawfully in accordance with the provisions of the Constitution.
569. Then he referred to the case of AI-Jehad Trust (supra). In the above case this Court in exercise of jurisdiction under Article 184(3) of the Constitution reviewed the relevant Articles of the Constitution relating to the appointments/transfers of the Judges of the superior Courts and laid down a framework for their operation. By the above judgment the Judiciary asserted its right to have an effective say in the matter of appointments of Judges in the superior Courts besides holding that the transfer of a sitting Chief Justice or a Judge of a High Court to the Federal Shariat Court (which was allegedly used by the various Governments as a dumping ground for the Judges who were found inconvenient to the Government in power) was violative of Article 209 of the Constitution.
570. After that he referred to the case of Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426, in which this Court has upheld the Constitution (Eighth Amendment) Act (XVIII of 1985), but at the same time hinted that there are some special features in all the Constitutions of the world including that of Pakistan.
571. Lastly he referred to the case of Mobtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388. In the above case this Court upheld the dissolution of the National Assembly and the dismissal of Mohtarma Benazir Bhutto's Government under Article 58(2)(b) of the Constitution, but at the same time, reiterated the principle of progressive/liberal interpretation of the Constitutional provisions, particularly, relating to the Fundamental Rights as was enunciated in the cases of Mian Muhammad Nawaz Sharif (supra) and Al,Jehad Trust (supra). The relevant portion from the opinion of Sajjad Ali Shah, the then C.J. reads as under:-
572. "In the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, it is held that approach of the Court while interpreting a Constitution provision has to be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. Court's efforts should be to construe the provision broadly, so that it may be able to meet the requirement of ever changing society. General words cannot be construed in isolation but the same are to be construed in the context in which they are employed. "
573. It appears that Mr. Hamid Khan has overlooked a judgment which has far-reaching effect as to the entire working of the Judiciary in Pakistan, namely, the case of Sharaf Faridi v. Province of Sindh PLD 1989 Karachi 404, in which a Full Bench of the High Court of Sindh comprising myself as the then C.J. and six companion Judges by majority view of 6:1 issued the following directions to the Federal and the Provincial Governments for effecting separation of Judiciary from the Executive in terms of Article 175(3) of the Constitution:--
574. "I would, therefore, allow the above two petitions in the following terms:-
(A) The respondent in the first petition i.e. respondent No.2 (i.e. the Province of Sindh) in the second petition is directed-
(i) ???????? to issue necessary notification in terms of subsection (2) of section 1 of Ordinance No.XII of 1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and to place the Judicial Magistrate under the Administrative control of the High Court within a period of six months;
(ii) ??????? to issue necessary Notification under sub-rule (2) of Rule 2 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1978, and Rule 24 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, notifying the High Court as the Authority within a period of sixty days;
575. ? (iii) to initiate legislative measures within a period of six months in order to make necessary amendments in the West Pakistan Civil Courts ? -Ordinance, 1962, Cr.P.C. Sindh Civil Servants Act, 1973. Sindh Civil ?????? Servants (Efficiency and Discipline) Rules, 1973, the Sindh Civil ? Servants (Appointment, Promotion and Transfer) Rules, 1974, and in the other enactments to make the same in conformity with above Articles 175 and 203 of the Constitution.
(B) Respondent No.l (i.e. the Federation of Pakistan) in the Second Petition is directed to initiate all legislative/administrative steps/measures to bring the existing laws relating or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months."
576. The above judgment was upheld by this Court, through the judgment reported in PLD 1994 SC 105 (Government of Sindh through Chief Secretary of the Government of Sindh, Karachi, and others v. Sharaf Faridi and others).
577. It may be highlighted that the above directions could not have been issued if the approach of the Court would have been conventional and not dynamic, progressive and oriented with the desire to meet situation arising out of the repeated failure on the part of various Governments to fulfil the mandate of the Constitution contained in clause (3) of Article 175 of the Constitution to separate the judiciary progressively from the Executive within the period specified therein. It may be pointed out that as a result of the above judgment, not only the High Courts have been given powers to have effective say in the ? appointments of Judges in the subordinate judiciary and to take disciplinary action against them including removal/dismissal from service by amending the relevant law/rules but they have been given financial independence to some extent, which includes the power to re-appropriate the various items. The Supreme Court also got the above financial independence because of the aforesaid judgment.
52. In my view, the approach of this Court to deal with the question at issue should be in line with the above dynamic and progressive approach, if we are to march with the jurisprudential development in the world as reflected by the above case-law, treatises and the conventions. This will also facilitate the strengthening of the democratic norms and institutions.
578. Mr. S. Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing for the Federation, has not only candidly conceded the above point but in fact placed on record latest literature in respect thereof including the above Privy Council case, for which we are grateful to him. I am, therefore, of the view that this Court has jurisdiction to review/re-examine the continuation of emergency at any stage if the circumstances so warrant.
53. Before concluding the above discussion, it may be pertinent to observe that the factum that the joint session of the Parliament had approved the above President's Proclamation of Emergency under clause (1) of Article 232 and the order under clause (2) of Article 233 does not change the character of the above original Proclamation of Emergency and/or orders; if they were invalid, they remain as such and vice versa. The effect of approval is that the Proclamation is sanctified as held by the Delhi High Court in the case of Pram Nath Lekhi (supra) and by the Indian Supreme Court in the case of S.R. Bommai (supra).
579. In the end I would like to record my gratitude to the learned Attorney? General, the learned counsel appearing for the parties and the learned counsel appearing as amicus curiae for the valuable assistance rendered by them.
580. These are the reasons pursuant to the short order dated 28-7-1998.
581. (Sd).
582. AJMAL MIAN, C.J
583. I agree with the judgment subject to my reasons recorded separately
584. (Sd).
585. SAIDUZZAMAN SIDDIQUI, J.
586. I agree. However, in view of the importance of the case, I will add my note.
587. (Sd.)
588. IRSAHD HASAN KHAN, J
589. I agree, However, I may add my note
590. (Sd.)
591. RAJA AFRASIAB KHAN, J
592. I also agree have added a separate note
593. (Sd. )
594. MUHAMMAD BASHIR JEHANGIRI, J
595. (Sd.)
596. NASIR ASLAM ZAHID, J. (Sd. )
597. MUNAWAR AHMED MIRZA, J.
598. IRSHAD HASAN KHAN, 1.--I have had the privilege of going through the eliminative judgment proposed to be delivered by the Hon'ble and learned Chief Justice Ajmal Mian, who has skilfully discussed the impugned Presidential Proclamation of Emergency under Article 232(1) and the subsequent Order, dated 28th May, 1998 under Article 233(2) of the Constitution, suspending the Fundamental Rights of the citizens of Pakistan and their impact on the future of Pakistan. I respectfully agree with the judgment proposed to be delivered by him in support of the Short Order, unanimously rendered by this Court on 28th July, 1998. However, in view of the importance of the case, I would add a note on the subject.
599. The President of Pakistan issued the Proclamation of Emergency, published in the Gazette of Pakistan, Extraordinary, on 28th May, 1998, which reads thus:
"PROCLAMATION OF EMERGENCY
600. Islamabad, the 28th May, 1998. ??????????????? ?????????????????????????????????????????????????????????????????
601. No.7-3/98-Min. 1.--Whereas the President is satisfied that a grave emergency exists in which the security of Pakistan is threatened by external aggression and by internal disturbance beyond the power of Provincial Governments to control.
2. Now, therefore, in exercise of the powers conferred by clause (1) of Article 232 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to issue hereby this Proclamation of Emergency.
602. MUHAMMAD RAFIQ TARAR, THE PRESIDENT."
603. This was followed by the Order of Emergency in the following terms:--
"ORDER
604. Whereas clause (2) of Article 233 of the Constitution of the Islamic Republic of Pakistan provides that while a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution as may be specified in the order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of the Rights so specified, shall remain suspended for the period during which the Proclamation is in force;
605. And whereas a Proclamation of Emergency is in force;
606. Now, therefore, in exercise of the powers conferred by the said clause (2) of Article 233, the President is pleased to declare that the right to move any Court, including a High Court and the Supreme Court for the enforcement of all the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, and all proceedings pending in any Court which are for the enforcement, or involve the determination of any question as to the enforcement, of any of the said Rights, shall remain suspended for the period during which the said Proclamation is in force.
607. MUHAMMAD RAFIQ TARAR, THE PRESIDENT."
608. ??????????? 3. ???????? There took place a joint sitting of the two Houses of Parliament on 10th
609. June, 1998, which passed the following resolutions:--
"RESOLUTIONS
2. Further discussion on the following resolutions moved by Mian Muhammad Yasin Khan Wattoo, Minister for Parliamentary Affairs on the 6th June, 1998:-
(i) That the joint sitting approves under clause (7) of Article 2.32 of the Constitution the Proclamation of Emergency issued by the President on the 28th May, 1998, under clause (1) of Article 232 of the Constitution.
(ii) That the joint sitting approves the Order made by the President on the 28th May, 1998, under clause (2) of Article 233 of the Constitution."
610. On 13th July, 1998, the President varied the Order made on 28th May, 1998 in the following terms:-
611. "No.43/1/98-Min. 1.--In exercise of the powers conferred by clause (2) of Article 233 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to vary the order made on the 28th May, 1998, as follows:-
612. In the said Order, in the third paragraph for the words 'all the Fundamental Rights conferred by Chapter 1 of Part II' the words and figures 'the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25' shall be substituted."
613. The Constitution in Part X (Articles 232 to 237) provides for three kinds of emergencies or abnormal situations which call for a departure from the normal Governmental functions of the country viz., (a) the Emergency under Article 232 due to war or external aggression or internal disturbance, (b) failure of Constitutional machinery in a Province and (c) financial emergency.
614. However, we are concerned here only with the first category of 'Emergency' contemplated by Article 232(1) of the Constitution.
4. Article 232 of the Constitution of the Islamic Republic of Pakistan, 1973, grants power to the President of Pakistan to issue a Proclamation of Emergency on account of war, internal disturbances etc. This power was also available to the President in terms of Article 191 of 1956 Constitution, Article 30 of 1962 Constitution, and Article 139 of 1972 Constitution. the corresponding provisions in the Indian Constitution are contained in Articles 352 and 353 thereof. Similar powers were also available to the Governor-General under section 102/126-A of the Government of India Act, 1935. It would be advantageous to reproduce Article 232 of the Constitution, 1973 which reads thus:-
615. "232.--(1) If the President is satisfied that a grave emergency exists in which the security of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency.
(2) ??????? Notwithstanding anything in the Constitution, while a Proclamation of Emergency is in force,--
(a) ??????? Majlis-e-Shoora (Parliament) shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal Legislative List or the Concurrent Legislative List;
(b) ? The executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive ? authority of the Province is to be exercised; and
(c) The Federal Government may by Order assume to itself, or direct the Governor of a Province to assume on behalf of the Federal Government, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, anybody or authority in the Province other than the Provincial Assembly, and make such incidental and consequential provisions as appear to the Federal Government to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to anybody or authority in the Province:
616. Provided that nothing in paragraph (c) shall authorise the Federal Government to assume to itself, or direct the Governor of the Province to assume on its behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.
(3) ??????? The power of Majlis-e-Shoora (Parliament) to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties upon the Federation, or officers and authorities of the Federation, as respects that matter.
(4) ??????? Nothing in this Article shall restrict the power of a Provincial Assembly to make any yaw which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) has under this Article power to make, the Act of Majlis-eShoora (Parliament) whether passed before or after the Provincial law, shall prevail and the Provincial law shall, to the extent of the repugnancy but so long only as the Act of Majlis-e-Shoora (Parliament) continues to have effect, be void.
617. ? (5) ?????? A law made by Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) would not but for the issue of a Proclamation of Emergency have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation of Emergency has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.
(6) ??????? While a Proclamation of Emergency is in force, Majlis-e-Shoora (Parliament) may by law extend the term of the National Assembly for a period not exceeding one year and not extending in any case beyond a period of six months after the Proclamation has ceased to be in force.
(7) ??????? A Proclamation of Emergency shall be laid before a joint sitting which shall be summoned by the President to meet within thirty days of the Proclamation being issued and-
(a) shall cease to be in force at the expiration of two months unless before the expiration of period it has been approved by a resolution of the joint sitting; and
(b) shall, subject to the provisions of paragraph (a), cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total membership of the two Houses in joint sitting.
(8) ??????? Notwithstanding anything contained in clause (7), if the National Assembly, stands dissolved at the time when a Proclamation of Emergency is issued, the Proclamation shall continue in force for a period of four months but, if general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate."
5. It would, therefore, be seen that the Proclamation of Emergency has to be laid, under clause (7) of Article 232, before a joint sitting which has to be "summoned by the President to .meet within thirty days of the Proclamation being issued" and under sub-clause (a) it "shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting". It is provided that the Proclamation "shall, subject to the provisions of paragraph (a) cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total membership of the two Houses in joint sitting". It may continue indefinitely until it is disapproved by a joint sitting by a resolution of the two Houses or the President terminates it.
618. "Emergency" has been defined in Black's Law Dictionary, Fifth Edition as follows:-
619. "Emergency.--A sudden unexpected happening; an unforeseen occurrence or condition; perplexing contingency or complication of circumstances; a sudden or unexpected occasion for action; exigency; pressing necessity. Emergency is an unforeseen combination of circumstances that calls for immediate action. State v. Perry, 29 Ohio App. 2nd 33, 2 78 N.E.2nd 50, 53. ????????? -
620. ?
621. Emergency Doctrine.--Under the doctrine variously referred to as the "emergency", "imminent peril", or "sudden peril" doctrine, when one is confronted with a sudden peril requiring instinctive action, he is not, in determining his course of action, held to the exercise of the same degree of care as when he has time for reflection, and in the event that a driver of a motor vehicle suddenly meets with an emergency which naturally would overpower the judgment of a reasonably prudent and careful driver, so that momentarily he is thereby rendered incapable of deliberate and intelligent action, and as a result injures a third person, he is not negligent, provided he has used due care to avoid meeting such an emergency and, after it arises, he exercises such care as a reasonably prudent and capable driver would use under the unusual circumstances. Sandberg v. Spoelstra, 46 Wash.2nd 776, 285 P.2nd 564, 568."
622. ?
6. Quaid-e-Azam Muhammad Ali Jinnah, after establishment of Pakistan on 14th August, 1947, said:--
623. "India has accepted Pakistan with reservation and at the first available opportunity would like to undo it."
624. Quaid-e-Azam, in his letter to the British Prime Minister, Mr. Attlee on 1st October, 1947, said:-
625. "I request to say that every effort is being made to put difficulties in our way by our enemies in order to paralyse and cripple or stake and bring about the collapse. I know that it may be a foolish dream and a futile objective of those who are pursuing the policy of disrupting Pakistan, and I also feel that ultimately it is impossible to break Pakistan. "
626. ?
627. The idea of making nuclear weapons was in Indian mind even before independence as is reflected from the statement of Pandat Jawaharlal Nahru, on June 26, 1946, after he visited Heroshima and Nagasaki soon after the 1945 nuclear holocaust. He said:-
628. "As long as the World is constituted as it is, every country will have to devise and use the latest scientific devices for its protection. I have no doubt India will develop her scientific resources: and I hope Indian Scientists will use the atomic force for constructive purposes. But if India is threatened, she will inevitably try to defend herself by all means at her disposal. "
7. Quaid-e-Azam Muhammad Ali Jinnah, in his Presidential address to the Muslim League Council, met at-Bombay on 27-29th July, 1946, concluded by quoting Firdousi, the Persian Poet:-
629. "If you seek peace, we do not want war, but if you want war, we will accept it unhesitantly."
630. Pakistan's policies were propounded by Quaid-e-Azam in his address to the establishment of H.M.P.S. Dilawar on January 23, 1948:-
631. "The First World War of 1914-18 was fought to end war. Its horrors quickened the conscience of the world and set statesmen thinking to devise ways and means of outlawing war. This led to the Birth of the League of Nations and the idea of collective security, but the League of Nations proved only a pious hope. It failed to avert World War-II. The destruction caused by the First World War pales into insignificance as compared to the devastation and havoc resulting from the last World War and now with the discovery of Atom Bomb, one shudders to think of the pattern of future wars. The war-weary humanity is watching with fear and hopes the evolution of the Untied Nations Organization for its ability to successfully deal with the causes of war and threats to world peace will depend on the salvation of mankind and the future of civilization. Pakistan, which has been recently admitted to the United Nations Organization, will do everything in its power to strengthen the Organization and help in the achievement of the ideals which have been set up as its goal. While giving the fullest support to the principles of the United Nations Charter, we cannot afford to neglect our defences. However, strong the United Nations Organization might be, the primary responsibility for the defence of our country will rest with us and Pakistan must be prepared for all eventualities and danger. The weak and defenceless in the imperfect World invite aggression from others. The best way in which we can serve the cause of peace is by removing the temptation from the path of those who think that we are weak, and therefore, they can bully or attack us. The temptation can be removed if we make ourselves so strong that nobody dare entertain any aggressive designs against us. Every one of you has an important role to play in strengthening the defence of the Country and your Watchwords should be faith, discipline and self-sacrifice."
632. ? According to a Press Report published in "The Dawn' December 6, 1983, Karachi, quoting a Jewish Chronicle of August 9, 1967, wherein David BenGurion, the first Israeli Prime Minister, termed Pakistan as posing a grave threat to the Zionist Movement. He stated:-
633. ??????????? "The World Zionist Movement should not be neglectful of the dangers ? of Pakistan to it. And Pakistan now should be its first target, for this ideological State is a threat to our existence. And Pakistan the whole of it hates the Jews and loves the Arabs. This lover of the Arab is more dangerous to us than the Arabs themselves. For that matter it is most essential for World Zionism that it should now take immediate steps against Pakistan."
634. Then pointing to India-Israel Alliance, he said:--
635. "Whereas the inhabitants of the Indian peninsula are Hindus whose hearts have been full of hatred throughout history against Muslims. Therefore, India is the most important base for us to work therefrom against Pakistan. It is essential that we exploit this base and strike and crush Pakistanis, enemies of Jews and Zionism, by all disguised and secret plans."
636. ?
8. Judicial notice may be taken of the fact that Pakistan presented a whole series of proposals to save our region from the spectre of Nuclear Bomb including nuclear weapons-free zone in South Asia in 1974; joint Indo-Pak declaration renouncing the acquisition or manufacture of nuclear sites in 1979 and simultaneous adherence to Non-Proliferation Treaty in 1979.
637. ?
9. Over two thousand tests have been conducted after World War-II. The First Atomic Bomb exploded on 16th July, 1945, in the New Mexico desert in the United States. According to the London-based International Institute of Strategic Studies, these atomic bombs were mostly exploded by the five nuclear powers: the Untied States, the Soviet Union, (now Russia), France, Britain and China. In terms of number the United States heads the list with 1032 tests, ? followed by the former Soviet Union with 715, France with 210, Britain with 45 and China 44. In 1963, Partial Test Ban Treaty, signed by the United States, the Soviet Union and Great Britain, forbade atmospheric testing but permitted nuclear powers to conduct underground tests.
638. India, which announced three underground nuclear tests, on 11th May, 1998, had also carried out an earlier test, in 1974. India was described as a threshold nuclear power. Its nuclear tests in May, 1998, were accompanied by threats against Pakistan of nuclear blackmail. These threats were seriously destabilising regional peace and posed a grave threat to Pakistan's security. Even before B.J.P. came into power in India, the party leaders were using provocative language against Pakistan, during the Election campaign. The Indian Prime Minister Mr. Vajpayee, in a statement on February 25, 1997 had threatened to liberate Azad Jammu and Kashmir. Indian Home Affairs Minister, L.K. Advani threatened Pakistan with nuclear blackmail, and spoke of "military solution to the Jammu and Kashmir dispute".
639. ?
10. The Indian nuclear blasts were condemned by one-voice by the people and leaders of all political parties of Pakistan. A defiant India carried out two more underground nuclear explosions two days after outraging the world with three tests. An Indian Foreign Ministry official said the tests involved, "two sub-kilotonne" explosions at 12:21 p.m. (0651 GMT) and were in continuation of the planned programme of underground nuclear tests, begun on 11th May, 1998. "The tests have been carried out to generate additional data for improved computer simulation of designs and for attaining the capability of carry outsubcritical experiments if considered necessary". The World Leaders expressed their dismay and condemnation for the nuclear explosions by India. A lucrative package had been offered to Pakistan to prevent it from carrying out nuclear tests. The offer included restoration of economic and military aid, repeal of Symmington and Pressler amendments, rectification of disparity in conventional weapons with India and writing-off of debts to the tune of billions of dollers, which Pakistan declined to accept, keeping in view the record of such assurances in the past. By the grace of God, Pakistan is today, the 7th Nuclear Power in the World.
640. ?
11. In the above background, Pakistan could not afford to surrender or succumb to blackmail. Sovereign States like Pakistan with acute and aggravated security concerns, obviously, could not bargain their national sovereignty or security. Pakistan has to fend for its own security, in that, unconditional security assurance were not available to Pakistan. It was, therefore, left with no choice but to opt for nuclear tests in self-defence. Clearly, Pakistan's nuclear tests have restored the strategic balance of power in the region.
641. ? Indeed, nuclear tests conducted by Pakistan were acclaimed by the people and Leaders of all political parties with one voice. The petitioners herein have also acclaimed the most historic decision taken by Pakistan in conducting nuclear tests. It was rightly said that Pakistan was born on 14th August, 1947 and re-gained its independence on 28th May, 1998.
642. ?
12. The Courts in India and Pakistan have been consistently taking the view that under clause (1) of Article 232 of the Pakistan Constitution and clause (1) of Article 352 of the Indian Constitution, the President alone is to determine as to whether a grave emergency exists in which the Security of Pakistan or any part thereof is threatened by war or external aggression or internal disturbance beyond the power of the Provincial Government to control. The Court cannot claim, in the exercise of its judicial power, to usurp the function of the President on which the power has been vested to issue Proclamation of Emergency on account of war, internal disturbance, etc. The President is the Judge for issuance of Proclamation of Emergency if either or any of the conditions contained in Article 232(1) of the Constitution exist. However, the Court, in exercise of its power of judicial review, is competent to examine the validity of the Proclamation issued under Article 232(1) of the Constitution, on the grounds of jurisdiction, coram non judice or mala fide. Refer Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738, which I respectfully follow.
643. ?
13. Having regard to the nature of the enabling provisions contained in Article 232(1) of the Constitution, the learned Attorney-General produced in our Chambers during the course of hearing at Lahore a file containing some sensitive material justifying Proclamation of Emergency. He also submitted that the situation emerging from sudden and unexpected nuclear explosions by India on 11-5-1998, sent ominous waves of shock across the world, obviously, causing grave concern to the security of Pakistan; following the nuclear explosions, the belligerent and hostile statements made by the Prime Minister and the Home Minister of India to "deal firmly and strongly with Pakistan" disclosed the Indian hostile intentions and her hegemonistic policies against Pakistan, of course, now backed by overt nuclear weaponization; warnings over the Kashmir dispute started pouring in, such as, Mr. Advani's statement asking Islamabad "to realize change in geostrategic situation". The learned Attorney-General informed the Court that the Indian High Commissioner was summoned to the Foreign Office at 0.100 hours and clearly asked to desist from any such action.
14. Ch. Muhammad Farooq, the learned Attorney-General for Pakistan was right in submitting that the situation was made very precarious in the wake of systematic large scale terrorism launched by the Research and Analysis Wing (RAW) of the Indian Intelligence; the external sector of the economy was one of the most vulnerable sectors on the eve of 28-5-1998; there was an apprehension of international monetary sanctions; the inflow of foreign exchange resources having been reduced sharply, necessary measures were to be taken to control its outflow and the priority development projects had to be protected to ensure economic growth and progress, therefore, imposition of Emergency was necessary.
644. In support of his above contentions, the learned Attorney-General referred to some excerpts from press statements/articles published in different newspapers viz., a Press Release of 10th March, 1998 said: "The Foreign Office spokesman has said ... ... ... ...Dastardly acts of terrorism have also been carried out to ignite sectarian violence in Pakistan resulting in the killings of foreigners. Conclusive evidence in the possession of the Government of Pakistan clearly .points to the fact that these terrorist acts were masterminded and executed by the Research and Analysis Wing (RAW) of the Indian Intelligence. Pakistan continues to be the victim of State-sponsored terrorism". Press Release of 12th March, 1998, which said: "The Heads of Mission of the countries representing the five permanent members of the U.N. Security Council were called to the Foreign Office by the Foreign Secretary, Mr. Shamshad Ahmad and briefed about the organized and systematic campaign of terrorism launched by the Research and Analysis Wing (RAW) of the Indian Intelligence. The envoys were told that the recent bomb blasts in trains and other public places were part and parcel of this State-sponsored compagin of subversion and terrorism ... ... ... . Press Release of 2nd May, 1998 contained: "A gruesome incident took place at Bandala, only 600 metres from the Line of Control inside Azad Jammu and Kashmir on the night of 26/27th April, 1998. The assailants cold-bloodedly killed 21 and injured 3 innocent civilians when most of them were asleep ... ... ... ..They were shot in the head with silencer-fitted weapons. Daggers were used to mutilate their bodies ... ... ... ..The unmistakable conclusion is that it is a deliberately planned and executed trans-LoC Indian Act of Terrorism, It comes in the wake of the Indian efforts to incite sectarian troubles and the recent spate of Indian sponsored terrorist bombings in Pakistan resulting in the brutal killing of many innocent civilians and destruction of property ... ... ...The sanctity of the Line of Control has been blatantly violated ". Press statement of 13 th May, 1998 informed: "The Defence Committee of the Cabinet met today under the chairmanship of the Prime Minister to take stock of the situation arising from Indian Nuclear Tests and overt weaponization by India. The meeting concluded that the reckless and highly provocative actions by the Indian Government had fundamentally altered the strategic situation in South Asia, besides dealing a severe blow to global non-proliferation. These Indian actions have magnified manifold the immediacy and the magnitude of the threat Pakistan's security ... ... The South Asian Region has been thrown into turmoil and its security has been severely endangered. U.S. President, Bill Clinton, telephoned the Prime Minister this afternoon to ? exchange views on the dangerous situation that has arisen as a result of the nuclear tests carried out by India ... ... ..Prime Minster ... ... emphasized Pakistan must give priority to its security needs and it had no optiod but to take appropriate measures to protect its sovereignty and security, in accordance with the aspirations of the people". ? Press Statement of 22nd May, 1998 read: "In recent days, Indian leaders have issued repeated threats of the use of force against Pakistan in violation of the U.N. Charter. They have also threatened the use of nuclear weapons against Pakistan. Advani's remarks reflect Indian's desire to secure its occupation of ? Kashmir through nuclear blackmail. The sort of jingoism and chauvinism being displayed by India bodes ill for the region and for its own poor and suffering people. Statement made by the Prime Minister Muhammad Nawaz Sharif on 28th May, 1998 was to the following effect: "Immediately after its nuclear tests, India had brazenly raised the demand that: Islamabad should realize the change in the geo-strategic situation in the region" and threatened that "India will deal firmly and strongly with Pakistan". Our security, and peace and stability of the entire region was, thus, gravely threatened ... ... ...In the wake of the Indian nuclear tests, we have been receiving information of the possibility of attacks on our nuclear installations ... ... .. ..Last night we received credible information that an attack was to be mounted before dawn".
645. ? To further reinforce his standpoint, the learned Attorney-General referred to a pamphlet entitled 'World Press Slams India for Nuclear Escalation' comprising assorted comments from international press. Some important extracts are reproduced hereunder for reference:
646. Al-Khaleej (Dubai)/Emirates News (Abu Dhabi) in its Editorial published on 1-6-1998, wrote:-
647. "19. Pakistan which is exhausted economically (its debts total $ 50 billion), has accepted hunger and the payment of a high price rather than submit and accept foreign protection and some economic aid which will not be a substitute for its own strength and might even endanger its national security. The US is using double standards in the Pakistani Indian struggle. It did not take an action against India but has imposed official sanctions on Pakistan and has asked Pakistan to announce that it has stopped its nuclear programme forever. May be the Arabs will benefit from the Pakistani lesson especially at this critical state of the Arab-Israeli struggle."
648. Bi-weekly Al-Shaab (Cario) in its 15th May, 1998 publication commented as follows:-
649. "22. Israeli circles have informed Washington that Tel Aviv would attack Pakistan by missiles and air raids if Pakistan exploded a nuclear device in response to India's nuclear explosion. India is scoffing at international reaction and sanctions, and is posing a threat to Pakistan's security. Israeli Prime Minister Natanyahu has expressed his satisfaction at the Indian explosion and has admired the Indian Prime Minister for doing the right thing."
650. The same Newspaper-in its 19th May, 1998 publication, published an Article written by Aamir Abdul Moneim, which reads thus:-
651. '25. Main Points of along analytical review are as follows:-
(i) Israel and India are cooperating with each other to arrange a pre emptive strike by long range missiles and military aircraft to destroy Pakistan's nuclear ability for developing an 'Islamic Bomb'.
(ii) ??????? Israel assisted India in building' nuclear reactors. According to the agreement Israel provided basic nuclear technology and in return India undertook to supply heavy water to Israel for its nuclear reactors.
(iii) ?????? Regular visits between the Military Chiefs of the two countries indicate the level of military cooperation.
(iv) ?????? Indo-Israeli cooperation was consolidated in 1982 when Pakistan managed to develop nuclear fuel locally.
(v) ??????? In May, 1992, Tel Aviv and New Delhi agreed to exchange information about Pakistan's nuclear programme and to coordinate their efforts against terrorism and Islamic fundamentalism.
(vi) ?????? Israel has been training Indian Intelligence agents and commandoes to fight against the Kashmiri Liberation Movement. "
652. Al-Wafd (Cairo) published an Article by Rizq Muhammad Sharif in its 30th May, 1998 publication, which reads thus:-
653. ??????????? "29. Cooperation between India and Israel has been blessed by ? Washington. Their denials do not reflect the truth. This cooperation became further consolidated with B.J.P. coming to power in Delhi and Netanyahu's anti-peace Government assuming leadership in Israel. The history of Indo-Israeli cooperation started with India's recognition of Israel. It is no more a secret that India obtained considerable help from Israel to develop its nuclear reactors. Israel in turn got raw material for its nuclear reactors. In return for supplying this technology Israel asked for the use of Indian air bases close to Pakistani borders. All this lead to one conclusion that there was complete harmony between the concerned powers and there is no truth in the claim that India befooled C.I.A. Soon after the test India started threatening Pakistan and called for a solution of Kashmir issue on its terms which meant domination of Muslim Kashmir by Hindu minority. Whatever the situation we hope and pray that Pakistan would not surrender to US blackmail and Zionist threat. "
654. The same Newspaper published another news item on the said date, which reads as under:-
655. "30. It seems that India went ahead with nuclear explosion after it received assurances through Israel that Europe and I.M.F. will not impose strong sanctions against it. Israeli experts were present at the site before, during and after the Indian nuclear tests. But with Pakistani explosion this has become impossible. India and Israel have a trade of U S$ 615 million. During the test an Israeli team of aeronautic experts was in New Delhi to upgrade the Russian tanks and aircraft and to develop missiles."
656. Kayhan International (Tehran) published a Commentary by H. Jaferzadeh, in its 30th May, 1998 publication. Relevant portion reads thus:-
657. "30. Reviewing the post-nuclear detonation era in India it cannot be denied that there is some truth in Sharif's statement that our hand was forced by the Indian leadership's reckless actions. Sharif is also right when he says that Pakistan has been obliged to exercise the nuclear option due to weaponization of India's nuclear programme."
658. Tehran Times (Tehran) in its Editorial dated 30-5-1998, wrote:-
659. "33. True, India's May 11 and 13 explosions were provocative, a fact that was admitted by the country's political stalwarts such as former Prime Ministers, I.K. Gujral, H.D. Dave Goda and Congress leader Sonia Gandhi. All prestigious Indian leaders have voiced their concern over Indian explosions and said that Pakistan's nuclear tests were reaction to the Indian move."
660. Iran Daily (Tehran) in its. Editoriral dated 1-6-1998 wrote:-
661. "34. The triple nuclear tests conducted by India may have caught the world by surprise. But Pakistan had long warned the international community of such a fateful moment that would threaten regional peace and security and indeed, would have repercussions that would go beyond the region. The advent of the Government and its provocative nuclear posturing was a clear enough indicator about the direction New Delhi was inexorably headed in. But unlike Islamabad, key capitals across the world neither took this threat seriously nor sought to do much about it. Instead, western praise of the B.J.P. Government's so called restraint, together with a history of looking the other way whenever Delhi took an escalatory step up the nuclear ladder may actually have encouraged and emboldened India to undertake the wide ? ranging tests witnessed on Monday. Pakistan which has now become the focus of international urging for restraint, will be closely watching for the quality, severity and scope of sanctions on India. Its response 'will be shaped at least in part, by how the international community now reacts to India's action."
662. Turkey, a leading rightist daily, in its publication dated 27-5-1998, published a commentary by Mustafa Asula, relevant portion of which reads thus:-
663. "36. India daringly conducted five nuclear tests by looking into the eyes of the international community. New Delhi's main target was Pakistan. India had never accepted the existence of Pakistan; it had attacked this smaller neighbour three times and had realized that Pakistan was not an easy bite. We are trying to treat both Pakistan and India equally. It is wrong if we say that it is a multi -dimensional and big-game foreign policy. How can we look at the right and wrong side from the same distance? Is it credible if we leave aside the friendship of Pakistan? What have we got from India especially on the matter of Cyprus and what do we expect in any field in future? I do not personally consider it a proper assessment if we evaluate India only by its enormous size. Is it worth ignoring a country like Pakistan and its valuable leaders."
664. Yeni Mesaj, another Turkish Newspaper, in its publication dated 27-5-1998, published a commentary by Dr. N. Ahmad Asrar, relevant portion whereof is reproduced below:
665. "37. India had been developing its nuclear weapons since 1974 and had been testing Prithvi and Agni missiles; but the Western world had been keeping silence. The present Hindu nationalist B.J.P. Government had made its plan clear for becoming a nuclear power, recovering part of Kashmir from Pakistan and brow-beating Pakistan. The recent nuclear tests had exposed India's nefarious designs against Pakistan, which was justified in taking every step for its national security. As a matter of fact, the West and America should ensure Pakistan's security, lift sanctions posed on it unjustifiably and India should be forced to abide by international norms of justice and terms of C.T.B.T."
666. Bangladesh Observer (Dhaka) published an Article by Azam Haider in its publication dated 22-5-1998, a portion whereof reads thus:-
667. "40. The Indians are flying quite high on their country's achievement in the field of nuclear technology. The Indian Prime Minister, Atal Bihari Vajpayee bragged about his country's performance in nuclear tests and stated without any ambiguity or prevarication that his country will not hesitate to use nuclear bombs in the event of attack by any other country. The Indian Prime Minister's statement represents his aggressive design. India is, thus, seen as a potential threat to regions, specially South, South East Asia, West Asia and China. Nawaz Sharif is an astute and far-sighted politician who knows if at all war breaks out between India and Pakistan, it will be fought by conventional non- nuclear weapons. His Indian counterpart, Atal Bihrai Vajpayee may feel complacent for the fact that he has the nuclear bomb. But it is of no value to him because he cannot use it against his opponent. In real terms India has, therefore, gained nothing by carrying out nuclear tests. On the contrary, she stands to lose. What stands out prominently among her losses is her seat in the Security Council. Delhi's chances of getting it has receded far in the background following her nuclear explosions. "
668. New Nation (Dhaka) another Daily of Bangladesh, published an Article by Emaduddin Ahmed on 27-5-1998, relevant portion whereof reads as follows:-
669. "42. Its (India's) policy-prescription for a stable power-balance in Asia has made practically one-quarter of the world population hostage to nuclear threat at the disposal of the irrational leadership in South Asia. When human rights and human dignity and freedom are the all important issues in this part of the world now, encouragement for nuclear option can never be -the answer."
670. Weekly Evidence (Dhaka) also published an Article by A.F.M. Faizullah on 29-5-1998, portion whereof is thus:-
671. "After its explosion of atomic bomb India is incessantly uttering words of warning against its neighbours. Already there were processions in India which chanted slogans - 'Atal will conquer Lanka'. How Nepal, Bhutan and Bangladesh can remain beyond India? It is the crucial Plan of Hindu fundamentalist Government of B.J.P."
672. Sunday Times (Colombo) in its Editorial dated 17-5-1998, observed:-
673. "52. For us Sri Lanka, the fact that India is so close to us is a matter for concern, and that its test blasts came on the holiest of days, the Vesak Day, is a matter of sadness. Further, the fact that if has intensified fears among its neighbours Pakistan and China gives cause for added concern. In this context we cannot agree with remarks made by Deputy Foreign Minister Lakshman Kiriella. Going contrary to the official line he said, India was free to do what it thought best for its own national security reasons. That is a danagerous concession to make to India."
674. India's own Newspaper the 'Hindustan Times (New Delhi) in its Editorial dated 21-5-1998 commented as under:-
675. "57. The Blimps of B.J.P. mouthing war-like slogans may please assorted local crowds but it can only serve to increase tensions in the region, The fact that international sanctions have ceased to be a threat should not lull the country into a false sense of security. Instead of looking for political capital inside the country, the Vajpayee Government should consciously change its priority from politics to meeting the economic costs of the nuclear assertion."
676. Another Newspaper of India namely 'The Hindu' (New Delhi) in a report published in its 28th May, 1913 publication, wrote:-
677. "67. The decision of the Prime Minister. Mr. Atal Behari Vajpayee, to divest himself of charge of Jammu and Kashmir affairs and let it be handled by the Home Minister Mr. L.K. Advani is disturbing in terms of the political implications, even if administratively speaking the change has corrected an aberration introduced during the P.V. Narasimha Rao regime for extraneous reasons. The regrettable political dimension is that it would now appear that the BJP-led Government has proclaimed loud and clear that Mr. Advani's blatantly hawkish stance will in effect underwrite its internal security policy vis-a-vis Jammu and Kashmir. In fact going by some of his utterances, the Home Minister may not stop with exercising control over the internal security mechanisms but may well-dictate the operations beyond the borders. Clearly, the judiciously structured policy framework--the internal security as well as foreign relations aspects--pertaining to the highly sensitive and complex Kashmir problem is under serious threat of being undermined."
678. Yet another Daily of India namely 'Times of India' (New Delhi) in its News Analysis published on 29-5-1998, wrote:-
679. "72. Unless India's Hindu Government changes track as well" as rhetoric, there will be no stopping of the arias race especially in the nuclear and missile field. Given the warning by Home and Defense Minister of India, Pakistan has to gird up its loins for a war as soon as the snows melt in the supper reaches of Kashmir. The big question is ? can the Indian and Pakistani Governments prevent the use of their nuclear weapons in the war they don't seem to be capable of averting. They have so far given no evidence of such a capability."
680. The Daily Yomiuri (Tokyo) in its 15th May, 1998 publication commented as under:-
681. "81. Since independence in 1947, Indian expansionsim has engulfed Kashmir, Junagarh, Hyderabad, Goa and Sikkim. Hegemonic tendencies are ingrained in the Indian psyche. This assertiveness flows from India's peculiar vision of Sourth Asia. While India's neighbours see the region as a normal grouping of independent States, India views the region as a unified; Indian' sub-continent over which it has manifest destiny to play the dominant role. This is why India continues to view Pakistan as a transient phenomenon, a pimple, if you will, on the face of Mother India that must be smoothed over and re-assimilated to restore her facial beauty."
682. Another Newspaper of Japan namely 'The Japan Times' (Tokyo), on 1-6-1998, reported at under:-
683. "84. Restraint was widely urged on Pakistan after India conducted five nuclear tests. But those doing the urging had to know their appeal was hollow. Pakistan, feeling that nothing less than its survival was ? at stake, was being asked to give up a matching nuclear option in return for an uncertain set of international guarantees. India's tests were strategically gratuitous. They did not emanate from any threat that reasonable people could perceive, certainly not one from Pakistan. Pakistan's five tests, however, had a claim to strategic justification. That is why India's tests enraged many in Washington and elsewhere, while Pakistan's were received more in sorrow than in anger."
684. People's Daily (Beijing), in its publication dated 15-5-1998, published an Article, relevant portion whereof is reproduced hereunder:-
685. ? "Indian trick is now obvious to every man in the street. The purpose of Indian development of nuclear weapons is to threaten its neighbours and ? dominate South Asia. Indian development of nuclear weapons will ??? bring about very serious consequences in regional and world peace and ? stability. That is why the international community strongly demands India to stop developing nuclear weapons. Indian deeds have greatly hurt the feelings of the Chinese people and undermined the friendly relations between China and India. "
686. The same Newspaper, in its publication of even date, published another Article, entitled: "A plot to dominate South Asia", relevant portion whereof reads thus:-
687. "87. The purpose of Indian development of nuclear weapons is to threaten its neighbours. It will bring about very serious consequences in regional and world peace and stability."
688. The 'Los Angeles Times' in its publication dated 13-5-1998, published a Commentary by Peter D. Zimmerman, relevant passage whereof is as under:-
689. "93. Two of the Indian weapons, the low yield or battlefield device and the pure fission weapon, certainly have Islamabad painted on their fuze." ?
690. Besides, several news-items from various local and international illagazines/newspapers/weeklies, etc. were referred wherein the gravity of the situation, which had arisen out of nuclear blasts conducted by India and the probability of war, with a tinge of certainty, between the two countries, was being prophesied.
691. To further substantiate his standpoint, the learned Attorney-General also referred to some extracts from speech of the Prime Minister Muhammad Nawaz Sharif, delivered before the Joint Sitting of the Parliament on 6th June, 1998.
15. After perusing the material placed on record and the file produced by the learned Attorney-General in Chambers, and hearing his learned submissions, and the illuminative submissions made by Syed Sharifuddin Pirzada, learned senior Advocate Supreme Court, with his usual skilfulness, lucidity and precision and the valuable assistance rendered by' the learned counsel for the parties and the learned amicus curiae, I am satisfied that the Proclamation was validly and bona fide issued by the President of Pakistan, in that, the material produced by the learned Attorney-General and the grounds taken in support thereof were relatable to the pre-conditions laid down in Article 232(1). Clearly, the President has acted reasonably, honestly, bona fide and in good faith, while issuing the Proclamation of Emergency. This Court is, however, competent to review/re-examine the continuation of Emergency at any subsequent stage, if called for. It is, therefore, not necessary to dilate further on the question of validity of Proclamation of Emergency.
16. As to the question of suspension of Fundamental Rights, I respectfully follow the observations of the Hon'ble Chief Justice that keeping in view the effect of the Proclamation provided for in clause (1) of Article 233 of the Constitution, which authorises the State to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, 19 and 24 of the Constitution as also keeping in view the language of Articles 10, 23 and 25, which are hedged with qualifications, an Order under clause (2) of Article 233 of the Constitution, suspending the enforcement of the Fundamental Rights, was not justified, therefore, the original order dated 28-5-1998 and that Order dated 13-7-1998, varying the above earlier Order, are declared as without lawful authority and of no legal effect.
17. ' Be that as it may, as the learned counsel for the parties and learned amicus curiae have taken great pains in assisting this Court for resolution of the dispute raised herein with reference to Pakistani and Foreign case-law, it would, therefore, be unfair not to refer to their respective submissions.
18. The grievance of the petitioners, is that there was no justification for the Proclamation of Emergency and suspension of Fundamental Rights, after Pakistan has become a nuclear power and that grave emergency did not exist, in which the security of Pakistan, or any part thereof, was threatened by war or external aggression or by internal disturbances, beyond the power of a Provincial Government to control.
19. Mr. Shahzad Jehangir, learned Senior Advocate Supreme Court, appearing on behalf of Sardar Farooq Ahmed Khan Leghari, assailed the Proclamation of Emergency and Order suspending Fundamental Rights on the basis of the following averments in the petition:-
692. "(1) That the pre-conditions laid down in the Constitution for making the said Proclamation and Order did not exist. 1t may graciously be appreciated that no emergency, let alone 'a grave emergency' existed or exists in Pakistan, and it could certainly not be said with any justification that the security of Pakistan stood or stands threatened by war or external aggression, or by any internal disturbances beyond the power of the Provincial Government to control in the circumstances the said Proclamation and the Order are liable to be struck down.
(2) That without prejudice to the above contention, there is certainly no justification for the suspension of the Fundamental Rights conferred by Chapter 1 of Part 11 of the Constitution. On the Government's own showing, the entire Nation is behind the present Government in the matter of conducting nuclear explosions, and in the matter of ensuring the security of Pakistan. In the circumstances, it is obviously tragic that the citizens of Pakistan who have wholeheartedly supported the Government of Pakistan in standing up to the Government of India and in giving a befitting answer to their bellicosity and uncalled for belligerence should be rewarded with stripping them of their Fundamental Rights guaranteed by the Constitution.
(3) That the Proclamation of Emergency cannot be allowed to serve as a cloak for the violation of the rights of the citizens or for abusing or misusing the emergency situation. The law is well-settled that the Courts have the sacred duty to keep the balance between the requirements of the nation and the Fundamental Rights guaranteed to the citizens 'War is no justification for any relaxation of the vigilance of Courts in seeking that the law is observed. Law, even in periods of emergency, should speak the same language as in normal times'.
(4) That this case involves a question of great public importance with reference to the enforcement of Fundamental Rights guaranteed by Chapter 1 of Part 11 of the Constitution, and, as held by this Hon'ble Court, 'Article 184(3) is the most effective weapon provided to secure and guarantee the Fundamental Rights'."
693. He emphasised that the Federal Government has failed to disclose any material or ground to justify the issuance or continuance of Proclamation of Emergency and suspension of Fundamental Rights. He further argued that the approval accorded to the Proclamation by the Parliament does not validate the impugned Proclamation made in violation of the Constitution. Mr. Shahzad Jehangir submitted that there was no threat to the security of Pakistan or any part of it by war or external aggression or internal disturbances beyond the powers of the Provincial Governments to control on the evening of May 28, 1998, after the successful nuclear tests. The precise submission was that whatever threat existed since May 11, 1998, when India conducted its nuclear tests it was averted on May 28, 1998 and the Prime Minister Muhammad Nawaz Sharif himself declared that the strategic balance 'has been restored'. He also referred to the statement of Foreign Minister Mr. Gohar Ayub that Pakistan was ahead of India in nuclear technology.
20. In furtherance of his contentions Mr. Shahzad Jehangir referred to the relevant provisions of the Constitution and the following decisions of this Court having relevance thereon: Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738, wherein it was held that the Proclamation of Emergency is justiciable if found to be without jurisdiction, coram non judice or mala fide. He further elaborated that the Proclamation is without jurisdiction, if it is found that it was made without proper application of mind.
694. Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166. wherein it was observed as follows:-
695. "The circumstance that the impugned action has political overtones cannot prevent the Court from interfering therewith, if it is shown that the action taken is violative of the Constitution. The superior Courts have an inherent duty, together with the appurtenant power in any case coming before them, to ascertain and enforce the provisions of the Constitution and as this duty is derivable from the express provision of the Constitution itself the Court will not be deterred from performing its Constitutional duty, merely because the action impugned has political implications (see Mr. Fazlul Quader Chowdhy and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486 at page 504). "
696. Mr. Shahzad Jehangir next cited Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 Supreme Court 473 and referred to the following observations made at page 561 by Nasim Hasan Shah, C.J. (as he then was):-
697. "This Court in the case of Haji Muhammad Saifullah PLD 1989 SC 166 has held that the grounds and material which form the basis of the order of dissolution are open to scrutiny and judicially reviewable, observing in this connection:
698. 'The discretion conferred by Article 58(2)(b) of the Constitution on the President cannot, therefore, be regarded to be an absolute one, but is to be deemed to be a qualified one, in the sense that it is circumscribed by the object of the law that confers it.
699. It must further be noted that the reading of the provisions of Articles 48(2) and 58(2) shows that the President has to first form his opinion, objectively and then, it is open to him to exercise his discretion one way or the other i.e. either to dissolve the Assembly or to decline to dissolve it. Even if some immunity envisaged by Article 48(2) is available to the action taken under Article 58(2) that can possibly be only in relation to the exercise of his discretion but not in relation to his 'opinion'. An obligation cast on the President by the aforesaid Constitutional provision that before exercising his discretion he has, to form his 'opinion' that a situation of the kind envisaged in Article 58(2)(b) has arisen which necessitates the grave step of dissolving the National Assembly. In Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673 Cornelius, C.J. while interpreting certain provisions of the Criminal Law Amendment Act, 1908, construed the word 'opinion' as under:-
700. ... ... ...it is a duty of Provincial Government to take into consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed, consequent upon which the opinion must be formed honestly, that the restriction is necessary. In this process, only element which I find to possess a subjective quality as against objective determination, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of circumstances compelling the conclusion. The scope for exercise of personal discretion is extremely limited ... ... ... . , , . , . . . ... ... . . . .. . . . . . . . . . . . . . .. . . . . . . . .. . As I have pointed out, if the section be construed in a comprehensive manner, the requirement o! an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the Governmental agency is clearly a prerequisite to the exercise of the power. In the period of foreign rule, such an argument, i.e. that the opinion of the person exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same State, it. can hardly be tolerated.
701. Thus, though the President can make his own assessment of the situation as to the course of action to be followed but his opinion must be founded on some material. In the present cases the President himself chose to state the grounds on which he was basing his action. As the grounds have been disclosed their validity can be examined. "
702. Again referring to Pir Sabir Shah's case (supra), Mr. Shahzad Jehangir laid special emphasis on Basu's commentary on the Constitution of India, Silver Jubili Edition, in which,- in Volume A, the following observations about the justiciability of the Proclamation under Article 356(1) of the Indian Constitution and clause (5) as introduced by the 30th Amendment, was noticed by Ajmal Mian, J. (as he then was), at page 789 of the report, was as follows:-
703. "(5) Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in the clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground.
704. This clause was introduced to make it clear that the Proclamation under Article 356(1), which is issued upon the subjective satisfaction of the President (like the Proclamation under Article 35f(1); see Vol. N, pp.209 ff.), could not be challenged before a Court of law on a ground relating to the satisfaction of the President.
705. Notwithstanding the above clause, however, the majority of a seven Judge Bench in the Rajasthan case held that the Proclamation could be challenged on the ground that the satisfaction was mala fide or founded on a ground extraneous to that specified in Article 356(1) because in either case, there was, in law, no satisfaction of the President at all.
706. Though the 7 Judges spoke in different voices, there was a fair consensus in the majority opinion followed in the subsequent case .of A.K.Roy, on the following point, namely, that a Proclamation under Article 356(1), though based on subjective satisfaction of the Executive, may be challenged on the grounds:
(a) ??????? That the Proclamation has been made upon a consideration which is wholly extraneous or irrelevant to the purpose for which the power under Article 356 had been conferred by the Constitution, namely, a break down of the Constitutional machinery in a State, or, in other words, where there is no reasonable nexus between 'the reasons disclosed and the satisfaction of the President, because in such a case, it can be said that there has been no 'satisfaction,' of the President which is condition precedent for exercise of the power under Article 356.
(b) ??????? That the exercise of the power under Article 356 was mala fide, because a statutory order which lacks bona fides has no existence in law.
707. In short, the factum of the President's satisfaction (though founded on ministerial advice) can be inquired into by the Court, to strike down the Proclamation under Article 356(1) as mala fide, if it is proved that it related to some ground other than a breakdown of the Constitutional machinery in the State concerned.
708. II. The bar to judicial review imposed by the foregoing clause (5) was removed by the elimination of that clause by the 44th Amendment Act, 1978, Thereafter, the question incidentally came up before the Constitution Bench of the Supreme Court in A.K.Roy's case. It was pointed out (para.27) that when the Rajasthan case was decided the bar to judicial review under' clause (5) was on the text of the Constitution. But since then that bar had been removed by the substitution in 1978. Hence, no doubt is left that the Proclamation under Article 356(1) is now open to judicial review on grounds of illegality, irrationality, impropriety or mala fides, or in short, abuse of power."
709. Mr. Shahzad Jehangir laid great emphasis on the following observations made by Ajmal Mian, J. (as he then was), at page 790:-
710. "A perusal of the above-quoted passage from above volume of Basu indicates that clause (5) to Article 356 was added, in the Indian Constitution by 38th Amendment which provided that 'notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground'. The Rajasthan case was decided when above added clause was very much in the field. In spite of that it was held by the Full Bench of the Indian Supreme Court, in the above Rajasthan case, that Proclamation could be challenged on the grounds that the satisfaction was mala fide or founded on a ground extraneous to that specified in Article 356(1) because in either case there was in law no satisfaction of the President at all. The above added clause (5) in Article 356 was removed by 44th Amendment Act, 1978. In the case of A. K.Rov AIR 1982 SC 710, it was held that since the bar had been removed by substitution in 1978; it was now open to the Judicial review on the grounds of illegality, irrationality, impropriety or mala fides or in short abuse of power. "
21. Mr. Shahzad Jehangir next referred to the case of Mir Abdul Baqi Baloch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi PLD 1968 SC 313, wherein the validity of his detention was challenged by the petitioner therein in pursuance of an order passed by the Deputy Commissioner, Karachi under rule 32(1)(b) of the Defence of Pakistan Rules, 1965. Challenge was also made to the vires of section 3(2)(x) of the Defence of Pakistan Ordinance (XIII of 1965). On the question of 'doctrine of subjective satisfaction' Mr. Shahzad Jehangir referred to the following passages of the report by Hamoodur Rahman, J. at page 325:-
711. "However, as I have said earlier, my reading of the majority decision in Ghulam Jilani's case to which I am a party, is that it alters the law laid down in Liversidges' case only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can, in discharge of its duty under Article 98(2)(b)(i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (b)(i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to Judicial review. If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of nature for which privilege can be claimed, then that two would be a matter for the Court to decide as to whether the document concerned is really so privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned."
22. Mr. Shahzad Jehangir concluding his arguments submitted that sporadic incidents of bomb blasts and incidents of dacoties and murders did not reflect internal threat. He further submitted that the law and order situation in Karachi was not worse than 1993 and 1996 when the Government controlled the same without Proclamation of Emergency and suspension of Fundamental Rights. He emphasised that the Emergency cannot be enforced merely for economic reasons and apprehension that the wealth may be drained out of the country. He stressed that even after the emergency the economic conditions are still worse. The dollar is soaring against rupee. The foreign banks have refused to open Letters of Credit while the 'panic-gripped people' are emptying their lockers in the banks. In short, he pleaded, that there was no need for imposition of Emergency and suspension of Fundamental Rights.
23. Having gone through the case-law referred to by Mr. Shahzad Jehangir and the submissions made by him, I am inclined to agree with him that unless and until the pre-conditions, laid down in Article 232(1) of the Constitution exist, the President is not competent to issue the Proclamation of Emergency. Mr. Shahzad Jehangir was right in asserting, on the strength of the observations made in the case of Haji Muhammad Saifullah Khan (supra), that tire superior Courts have an inherent duty, together with the appurtenant power in any case coming before them, to ascertain and enforce the provisions of the Constitution and as this duty is derivable from the express provision of the Constitution itself, the Court will not be deterred from performing its Constitutional duty, merely because the action impugned has political implications. He was also right in asserting that the Government must place before this Court the material upon which the President claimed to have been satisfied so that the Court could, in discharge of its Constitutional duty, be in turn, satisfied that the Proclamation was not without jurisdiction, coram non judice or mala fide. In the instant case, as observed earlier, it has been found that the pre-conditions laid down in Article 232(1) of the Constitution did exist when the impugned Proclamation was issued by the President. Mr. Shahzad Jehangir, himself respectfully pointed out that in view of the ratio laid down in Pir Sabir Shah's case (supra), the Proclamation of Emergency is justiciable only if it is found to be without jurisdiction, coram non judice or mala fide. Thus visualized, it can be safely said that the Proclamation of Emergency was issued upon a consideration, for the purpose for which power under Article 232(1) has been conferred on the President by the Constitution. I am also satisfied that there is reasonable nexus between the reasons disclosed and the 'satisfaction' of the President, which is a condition precedent for exercise of the power under Article 232(1). It does not suffer from any illegality, irrationality, impropriety or mala -fide or abuse of power. No exception can, therefore, be taken to the Proclamation under challenge.
24. Mr. Muhammad Ikram Chaudhary, Advocate Supreme Court, appearing on behalf of Mr. Ghulam Qadir Jatoi., the petitioner in C.P. No. 12 of 1998, reiterating submissions made by Mr. Shahzad Jehangir, respectfully submitted that in the garb of Proclamation of Emergency, fundamental rights of all the people have been suspended including the Judiciary preventing it from taking cognizance of the petitions relating to enforcement of fundamental rights. He argued that the usurpation of the citizens' rights through the impugned Proclamation and Order has created an atmosphere of unrest and discontentment throughout Pakistan, which may lead to agitation and revolution, detrimental to the interest and security of Pakistan. He stated that the Proclamation of Emergency has driven the country to a grave situation and its economy has crumbled down.
25. In support of his contentions, Mr. Muhammad Ikram Chaudhary, cited the following case-law:-
712. Fazal-ul-Qadir Ch. v. Muhammad Abdul Haque PLD 1963 SC 486, wherein questions relating to duty of the Courts to defend Constitution and their jurisdiction (pages 504 and 506 (E&F); power of judicial review (page 5160); written Constitution and bar of jurisdiction (pages 512(s) and 539(qq); Supremacy of the Constitution and its interpretation (pages 516(J), 517-K; ouster of jurisdiction of Superior Courts to be strictly construed (pages 524para.5, 539-para.-3, 540-para.-1); principles of interpretation of Constitution (pages 534-paras. 2-6, 535-para.-2); President, his power and Article 30 and Article 224 of the Constitution of 1962 (regarding subjective or objective satisfaction (pages 536-last para.)) and essential features of Constitution (page 538(pp)), were discussed.
713. Abdul Baqi Baluch v. Government of Pakistan PLD 1968 SC 313, wherein word 'satisfaction' was defined at pages 322(c)(d), 323(e), 325(h)(i)(j) and 'Judicial Review' was dilated upon page 324(t).
714. Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, in which laws. as to interpretation during emergency (page 35(f)) and the words: 'opinion', 'reasonableness', 'satisfaction' and 'Judicial Review' (pages 29 to 34), were judicially explained.
715. Asma Jillani v. Government of Punjab PLD 1972 SC 139, wherein besides discussing power of judicial review at pages 197(y) and 198, the question 'what is law?' according to Laski in his book 'A Grammar of Politics' was also taken into consideration.
716. The State v. Zia-ur-Rehman PLD 1973 SC 49, wherein some important/basic questions such as, trichotomy of power under written Constitution (pages 66(a)(b) and 67); this Court's right to interpret Constitution and ouster of its jurisdiction (page 69(d)); judicial power and jurisdiction (page 69(g)); Objectives Resolution 'a ground norm' but not available as a touchstone to test the validity of other provisions of Constitution (page 710)) and an act done mala fide is an act without jurisdiction (pages 87(u) and, 88), were discussed.
717. Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151, in which validity of an order, principles relating to judicial power and jurisdiction; burden of proof regarding official acts and the terms 'without jurisdiction', 'mala fide' and 'coram non judice' at pages 169(e,f), 1720), 156, 170(g,h) were discussed respectively.
718. Habiba Jillani v. Pakistan PLD 1974 Lah. 153, wherein the word 'being satisfied', its limits and relevancy of state of mind, Articles relating to emergency viz. 232, 233(7)(8) and 280 and status of Fundamental Rights, were discussed at pages 167 and 168 respectively.
719. Ch. Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66, wherein word 'law' was defined in the light of 1962 Constitution and colourable exercise, for extraneous reasons or no consideration were discussed at pages 93 and 94; principles of interpretation of Constitutions as seen by American Jurists were referred at pages 102, 103 and 104; Constitutional rights and Article 199 at pages 125, 126(x) and ouster of jurisdiction at pages 136, 137 and 138, were discussed.
720. Malik Muhammad Suleman v. Pakistan PLD 1976 Lah. 1250, in which following points were dilated upon; meaning of Emergency and its interpretation (page 1257(a)), its continuation under Article 232(7), time frame (page 1258(b)), state of Fundamental Rights (page 1258(e)), subjective satisfaction of President (pages 1259, 1260(G-H)) and Emergency in Islam (pages 1262, 1263(I-J)).
721. Federation of Pakistan v. United Sugar Mills PLD 1977 SC 397, wherein word 'law' as used in Articles 4 and 8 of Constitution, was discussed (pages 405 and 406 (A-B)).
722. Mumtaz Ali Bhutto v. Deputy Martial Law Administrator PLD 1979 Kar: 307, wherein preservation of Fundamental Rights in an Islamic State at pages 294, 395; suspension of Fundamental Rights under Article 233 at pages 396, 397 and law of necessity and its limits at page 398, paras. 2 and 3, were dilated upon.
723. Darwesh M. Arbey v. Federation of Pakistan PLD 1980 Lah. 206, wherein at pages 297 and 298, the Objectives Resolution, basic features of the Constitution and Fundamental Rights were discussed.
724. Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26, wherein questions as to ouster of jurisdiction to be strictly construed (pages 44(c)(d)); acts, orders and proceedings without jurisdiction, mala fide or coram non judice (pages 46, 40 (e-f)) and interpretation of Constitution (pages 53, 54(g,h,i)), were dilated upon.
725. Federation of Pakistan v. Haji Muhammad Saifullah PLD 1989 SC 166, wherein legal question like administration of Justice and Courts, instances of exclusion of Court's jurisdiction. Articles 58(2)(b) and 48(2) and abuse of power at pages 194-195, 211(v), 212-213 and 214(BB), were elaborated.
726. Hakam Khan v. Government of Pakistan PLD 1992 SC 595, wherein Objectives Resolution at pages 615-616 (AB), status of Legislature, Executive and Judiciary at page 619 (f) were discussed.
727. Pepper v. Hard (1993 SCMR 1019), wherein judicial review and Parliamentary privileges were dilated upon.
728. Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738, wherein it was observed that in spite of ouster clause, an order which is mala fide, without jurisdiction and coram non judice can be looked into (pages 763, 764, 765(ABC)). Besides, Presidential Proclamation under Article 234 and the words 'satisfaction' and 'opinion' were also discussed at pages 831 to 839 (pp to tt).
729. Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426, wherein Objectives Resolution, basic features of the Constitution Federalism, Parliamentary form of Government belended with Islamic provisions at pages 446 to 459 (B,C,D,E,F,G,H) and power of judicial review, were dilated upon.
730. The learned counsel also referred the following case-law from Indian jurisdiction:-
731. Makhan Singh v. State of Punjab AIR 1964 SC 381, wherein at 407, 414 and 415, suspension of enforcement of Fundamental Rights, powers of President and of the Parliament to legislate, have been discussed.
732. I.C. Golak Nath v. State of Punjab AIR 1967 SC 1643, wherein power of judicial review, Emergency and Fundamental Rights, have been discussed at pages 1656 and 1657.
733. Kasavanda Bharati v. State of Kerala AIR 1973 SC 458, wherein Basic Structure Theory of Constitution and Fundamental Rights have been dilated upon.
734. Shamshir Singh v. State of Punjab AIR 1974 SC 2192, in which 'satisfaction' of the President has been elaborated.
735. Raj Narain v. India AIR 1975 SC 2299, wherein Supremacy of the Constitution and its Basic Structure and Separation of Powers of the three Organs of the State, have been discussed.
736. Khudiram Das v. The State of West Bengal AIR 1975 SC 550, wherein preconditions for Emergency have been laid down.
737. A.D.M. Jabalpur v. S. Shukla AIR 1976 SC 1207, wherein 'law', due process of law, historical background of law, rule of law and precedents, order of President in Emergency to be construed strictly and the power of judicial review, have been discussed at pages 1252 to 1256, 1257 to 1264, 1265 and 1268.
738. State of Rajasthan v. Union of India AIR 1977 SC 1361, wherein basic structure theory, President's satisfaction and extent of judicial review by the Courts, have been dilated upon ? pages 1376, 1377, 1383, 1384, 1387, 1391, 1412 and 1415.
739. M.M. Pathak v. Union of India AIR 1978 SC 803, wherein Fundamental Rights and Emergency have been discussed. Also see A.K.Roy v. Union of India AIR 1982 SC 710.
740. S.R. Boomai v. Union of India AIR 1994 SC 1918, wherein inter alia, power of the President in Emergency and its sparing use and Proclamation's 'approval by Parliament, have been discussed.
741. And Attorney-General for India v. Amratlal AIR 1994 SC 2179, wherein President's powers and exercise of authority by the Government, have been dilated upon.
26. The learned counsel also referred to a paragraph from Corpus Juris Secundum By Francis J. Ludes, Volume 16, at page 23, Constitutional Law 3, which is as follows:-
742. "Emergencies do not authorize the suspension of the Constitution and its guaranties, and rules of expediency must not be placed above the Constitution. However, the rights guaranteed by a Constitution are not so absolute that they may be exercised under all circumstances, and without any qualification, but, like other rights, must always be exercised with reasonable regard for the conflicting rights of others. Constitutional guaranties are not immune from regulation or limitation in the interest of the common good. "
743. He also referred to "Words and Phrases" Legally Defined, Second Edition by John B. Saunders, Volume 5, 1970, wherein word 'satisfied' has been defined thus:-
744. "I hold ... ...that in this statute (Matrimonial Causes Act, 1950 (repealed; see now section 5(3) of the Matrimonial Causes Act, 1905) the word 'satisfied' does not mean 'satisfied' beyond reasonable doubt. The Legislature is quite capable of putting in the words 'beyond reasonable doubt' if it meant it. It did not do so. It simply said on whom the burden of proof rested, leaving it to the Court itself to decide what standard of proof was required in order to be 'satisfied'. Blyth v. Blyth (1966) 1 All ER 524, H.L., per Lord Denning at p.536.
745. The phrase used in section 4(2) of the Act of 1950 is simply 'is satisfied' with no adverbial qualification. The formula 'satisfied beyond reasonable doubt' has been a very familiar one for. a great many years, and if that meaning had been intended the formula could and should have been used. The phrase 'is satisfied' means, in my view, simply 'makes up its mind'; the Court on the evidence comes to a conclusion which, in conjunction with other conclusions, will lead to the judicial decision. There is no need or justification for adding any adverbial qualification to 'is satisfied'. Ibid., per Lord Pearson, at p.54. "
746. He then referred to 'Munual of Law Terms and Phrases', 7th Edition, revised by H. Sarkar and D.F. Mulla, 1972, wherein word 'satisfied' has been defined thus:-
747. " ' Satisfied' : The word 'satisfied' is a term of considerable expensiveness. The term 'satisfied' has been understood to mean, free from anxiety, doubt, perplexity, suspense or uncertainty. In this context it is synonymous with, 'convince beyond reasonable doubt'. In order that a Magistrate be relieved of all doubts or uncertainty and for his mind to be reasonably certain or free from doubt, it is necessary that he should permit parties concerned to place before him sufficient material, justifying initiation of the proceedings."
748. (Cf.Cr.P.C. (1898) Sec. 45) Faqir Chand v. Bhana Ram, 1957 Punj. 303. "
749. Reference was made to a passage from 'An Introduction to the Study of the Law of the Constitution' by AN. Dicey to show executive excesses in the exercise of its discretionary authority, which reads thus:-
750. ... ... ...In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest or temporary imprisonment, or expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the Government in England; and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subject."
751. He goes on to refer from the same book another passage to contend that every official from Prime Minister down to a constable or a collector of taxes, is responsible for every act done by him without legal justification like any other citizen. The relevant passage reads thus:-
752. "In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts, has been ? pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as arty other citizen. The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishments, or to the payment of damages, for acts done in their officials' character but in excess of their lawful authority. A colonial Governor, a Secretary of State, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person "
27. I have gone through the case-law cited at the Bar by Mr. Muhammad Ikram Chaudhary and considered his submissions. The same submissions were made by Mr. Shahzad Jehangir while discussing the plea raised by him. I take the view that prerequisite conditions for issuance of Proclamation of Emergency existed before the Proclamation was issued. I am, however, inclined to agree with him that mere Parliamentary approval does not have the effect of excluding judicial review to the extent permissible as discussed above. It is, therefore, not necessary to comment further on the submissions made by him supporte_1 by the case-law. As to suspension of Fundamental Rights, as observed earlier, I am in respectful agreement with the view taken by the learned Chief Justice and the reasons advanced by him in support thereof.
28. Mr. Shabbar Raza Rizvi, Advocate Supreme Court, learned counsel appearing on behalf of Mian Manzoor Ahmed Wattoo, petitioner in Constitution Petition No. 16 of 1998, inter alia, raised the following six contentions:-
(1) ??????? That neither prerequisite conditions for issuance of Proclamation of Emergency existed between the time from 11th May, 1998 to 28th May, 1998 nor immediately thereafter nor even up till today.
(2) ??????? That Articles 232, 233 and 236 are to be construed alongwith Articles 1(2) and 2A of the Constitution, as the latter have become substantive part of the Constitution and that the people cannot be deprived of their access to the Courts and the Courts cannot be stripped off their jurisdiction in any emergency/extraordinary circumstances whatsoever.
(3) ??????? That 'this petition is maintainable under Article 184(3) of the ? Constitution in spite of the ouster clause contained in Article 236 as also the approval of the Parliament for the issuance of impugned Proclamation.
(4) ??????? That there did not exist on 28th May, 1998 the material, which had the direct nexus for the purpose of Proclamation.
(5) ??????? That the act of the respondent is malice in law, without jurisdiction/in excess of jurisdiction, irrational and against the principle of proportionality; and
(6) ??????? That the impugned Proclamation, the varied Order and the material, on which the President based his satisfaction, is not a political question, hence is open to judicial review.
29. In support of his contentions, Mr. Shabbar Raza Rizvi, argued that in the impugned Proclamation there is no mention of the words 'threat of war' but it only speaks of 'external aggression' and 'internal disturbances'. He then proceeded to refer to Black's Law, Dictionary, 5th Edition, wherein word 'external' has been defined in the following words:-
753. "External.--Apparent, outward, visible from the outside, patent, exterior, capable of being perceived. Acting from without, as the external surface of a body; physical or corporeal, as distinguished from mental or moral ?? "
754. He also referred to Exford English Dictionary, Volume I, in which term 'external' has been defined, thus:
755. "Situated outside; pertaining to connected with, or lying towards, the outside. Outwardly visible or perceptible. Situated outside the object under consideration. Belonging to the world of phenomena. Arising or acting from outside. Having an outside or foreign, object or sphere of operation ???????? "
756. He then referred to Chambers' English Dictionary, in which at page 24, word 'aggression' has been defined as follows:-
757. "Aggression.--A first act of hostility or injury: the use of armed force by a stage against the sovereignty, territorial integrity or political independence of another State; self-assertiveness, either as a good characteristic or as a sign of emotional instability.
758. 'Aggressive.--Making the first attack, or prone to do so: discourteously hostile or self-assertive: offensive as opposed to defensive: showing energy and initiative'."
759. He also referred to Law Terms and Phrases, Judicially Interpreted by Sardar Muhammad lqbal Khan Mokal, where word 'aggression' has been defined:-
760. "An inroad, invasion or encroachment of rights of another. It is also used to indicate the act of proceeding to hostilities or invasion of another country without any apparent cause for conflict."
761. Besides, Syed Shabbar Raza Rizvi, the learned counsel for the petitioner in C.P. No. 16 of 1998, drew attention of the Bench to different statements made by the Ministers and the Prime Minister in different newspapers, to show that Emergency was imposed owing to financial and economic crises in the country. He argued that neither the Federal nor Provincial Governments had confessed that things were beyond their control; that the Government had no material to produce for the justification of the Emergency; and that after the petitions against the imposition of Emergency were filed the learned Attorney-General had sought time from the Court to collect information from certain quarters, therefore, he was the last person to present his point of view before adjournment.
30. In support of his arguments, the learned counsel referred to S.R. Bommai v. Union of India AIR 1994 SC 1918, wherein it was observed that when the Proclamation is challenged, burden would be on the Union Government to satisfy that there exists material. which showed that the Government could not be carried on in accordance with the provisions of the Constitution. The relevant passage reads thus:-
762. "61. Since further the Proclamation issued under Article 356(1) is required by clause (3) of that Article to be laid before each House of Parliament and ceases to operate on the expiration of two months unless it has been approved by resolutions by both the Houses of Parliament before the expiration of that period, it is evident that the question as to whether a Proclamation should or should not have been made, has to be discussed on the floor of each house and the two Houses would be entitled to go into the material on the basis of which the Council of Ministers had tendered the advice to the President for issuance of the Proclamation. Hence the secrecy claimed in respect of the material in question cannot remain inviolable, and the plea of non-disclosure of the material can hardly be pressed. When the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the Government could not be carried on in accordance with the provisions of the Constitution. Since such material would be exclusively within the knowledge of the Union Government, in view of the provisions of section 106 of the Evidence Act, the burden of proving the existence of such material would be on the Union Government."
763. He also referred to paragraph 64 of the above report, which reads thus:-
764. "64. It will be an inexcusable error to examine the provisions of Article 356 from a pure legalistic angle and interpret their meaning only through jurisdictional technicalities. The Constitution is essentially a political document and provisions such as Article 356 have a potentiality to unsettle and subvert the entire Constitutional scheme. The exercise of powers vested under such provisions needs, therefore, to be circumscribed to maintain the fundamental Constitutional balance lest the Constitution is defaced and destroyed. This can be achieved even without bending much less breaking the normal rules of interpretation, if the interpretation is alive to the other equally important provisions of the Constitution and its bearing on them. Democracy and federalism are essential features of our Constitution and are part of its basic structure. Any interpretation that we may place on Article 356 must, therefore, help to preserve and not subvert. their fabric. The power vested de jure in the President but de facto in the Council of Ministers under Article 356 has all the latent capacity to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly. This can be done by the Courts while confining. themselves to the acknowledged parameters of the judicial review as discussed above viz., illegality, irrationality and mala fides. Such scrutiny of the material will also be within the judicially discoverable and manageable standards."
765. Reference from the same report was also made to paragraphs 335 and 337-, which are as under:-
766. "335. In this too, the Proclamation recites that the requisite satisfaction was arrived at on the basis of the report of the Governor and the other information received by the President but no such information or material has been brought to our notice. We must conclude that there was none and that the recital to that effect is a mere mechanical one.
337. Accordingly, we hold the proclamation as unconstitutional. But for the fact that since the date of proclamation, fresh elections have been half, to the Assembly and a new House has come into existence, we would have certainly issued the writ and directed the restoration>of the Lyngdoh Ministry to office and restored the Assembly as well."
767. Reference was made from the same report to contend as to what was the effect of approval by Parliament for imposition of Emergency. The relevant passages are reproduced hereunder:-
768. "49. It is also clear that mere Parliamentary approval does not have the effect of excluding judicial review to the extent permissible. In Sarojini Ramaswami (Mrs.) v. Union of India (1992) 4 SCC 506: (1992 AIR SCW 2683) it has been stated thus, paras.71, 72 and 73 of AIR).
72. We may, however, add that the intervention of the Parliamentary part of the process, in case a finding of guilty is made, which according to Shri Sibal would totally exclude judicial review thereafter is a misapprehension since limited judicial review even in that area is not in doubt after the decision of this Court in Keshav Singh AIR 1965 SC 745.
73. At this stage, a reference to the nature and scope of judicial review as understood in similar situations is helpful. In Administrative Law (Sixth Edition) by H.W.R. Wade, in the Chapter 'Constitutional Foundations of the Powers of the Courts' under the heading 'The Sovereignty of Parliament, the effect of Parliament's intervention is stated thus (at p.29):
769. '... ... ...There are many cases where some administrative order or regulation is required by statute to be approved by resolutions of the Houses. But this procedure in no way protects the order or regulation from being condemned by the Court, under the doctrine of ultra vires, if it is not strictly in accordance with the act. Whether the challenge is made before or after the Houses have given their approval is immaterial.'
770. Later at 411, Wade has said that 'in accordance with Constitutional principle, parliamentary approval does not affect the normal operation of judicial review'. At 870 while discussing 'Judicial Review', Wade indicates the position thus:
771. 'As these cases show, judicial review is in no way inhibited by the fact that rules or regulations have been laid before Parliament and approved, despite the ruling of the House of Lords that the test of unreasonableness should not then operate in its normal way. The Court of appeal has emphasised that in the case of subordinate legislation such as in Order in Council approved in draft by both Houses, the Courts would without doubt be competent to consider whether or not, the order was properly made in the sense of being intra vires.'
74. The clear indication, therefore, is that mere parliamentary approval of an action or even a report by an outside authority when without such approval, the action or report is ineffective by itself, does not have the effect of excluding judicial review on the permissible grounds.
309. Sri Parasaran, learned counsel for the Union of India urged that inasmuch as the proclamation under clause (1) has been approved by both Houses of Parliament as contemplated by clause (3), the proclamation assumes the character of Legislation and that it can be struck down only on grounds on which a Legislation can be struck down. We cannot agree. Every act of Parliament does not amount to and does not result in Legislation, though Legislation is its main function. Parliament performs many other functions, e.g., election of Speaker and Deputy Speaker, vote of confidence/no confidence in the Ministry, motion of thanks to the President after the address by the President and so on. One of such functions is the approval of the proclamation under clause (3). Such approval can by no stretch of imagination be called 'Legislation'. It is not processed or passed as a Bill nor is it presented to the President for his assent. Its legal character is wholly different. It is a Constitutional function, a check upon the exercise of power under clause (1). It is a safeguard conceived in the interest of ensuring proper exercise of power under clause (1). It is another matter that in practice the check has not proved effective. But that may not be so in future or for all times to come. Be that as it may it is certainly not legislation or legislative in character.
71. ?????? The further equally important question that arises in this context is whether the President when he issues Proclamation under Article 356(1), would be justified in removing the Government in power or dissolving the Legislative Assembly, and thus, in exercising all the powers mentioned in sub-clauses (a), (b) and (c) of clause (1) of Article 356 whatever the nature of the situation or the degree of the failure of the Constitutional machinery. A strong contention was raised that situations of the failure of the Constitutional machinery may be varied in nature and extent, and hence measures to remedy the situation may differ both in kind and degree. It would be a disproportionate and unreasonable exercise of power if the removal of Government or dissolution of the- Assembly is ordered when what the situation required, was for example, only assumption of some functions or powers of the Government of the State under Article 356(1)(a). The excessive use of power also amounts to illegal, irrational and mala fide exercise of power. Hence, it is urged that the doctrine of proportionality is relevant in this context and has to be applied in such circumstances. To appreciate the discussion on the point, it is necessary to realise that the removal of Government and the dissolution of Assembly are effected by the President, if he exercises powers of the Government under Articles 164(1) and 174(2)(b) respectively under sub-clause (a) of Article 356(1), though that is neither necessary nor obligatory while issuing the Proclamation. In other words, the removal of the Ministry or the dissolution of the Legislative Assembly is not an automatic consequence of the issuance of the Proclamation. The exercise of the powers under sub-clauses (a), (b) and (c) of Article 356(1) may also co-exist with a mere suspension of the political Executive and the Legislature of the State. Sub-clause (c) of Article 356(1) makes it clear. It speaks of incidental and consequential provisions to give effect to the objects of the Proclamation including suspension is whole or part of the operation of any provision of the Constitution relating to anybody or authority in the State. It has to be noted that unlike sub-clause (a), it does not exclude the Legislature of the State. Sub-clause (b) only speaks of exercise of the power of Legislature of the State by or under the authority of the Parliament. What is further, the assumption of only some of the functions of the Government and the powers of the Governor or of anybody or authority in the State other than the Legislature of the State under sub-clause (a), is also conceivable with the retention of the other functions and powers with the Government of the State and the Governor or anybody or authority in the State. The language of sub-clause (a) is very clear on the subject. It must be remembered in this connection that where there is a bicameral Legislature, the Upper House, i.e., the Legislative Council cannot be dissolved. Yet under sub-clause (b) of Article 356(1) its powers are exercisable by or under the authority of Parliament. The word used there is 'Legislature' and not 'Legislative Assembly'. Legislature includes both the Lower House and the Upper House, i.e., the Legislative Assembly and the Legislative Council. It has also to be noted that when the powers of the Legislature of the State are declared to be exercisable by or under the authority of the Parliament under Article 356(1)(b), it is competent for Parliament under Article 357, to confer on the President the power of such Legislature to make laws and to authorise the President to delegate the powers so conferred, to any other authority to be specified by him. The authority so chosen may be the Union or officers and authorities thereof. Legally, therefore, it is permissible under Article 356(1), firstly, only to suspend the political executive or anybody or authority in the State and also the Legislature of the State and not to remove or dissolve them. Secondly, it is also permissible for the President to assume only some of the functions of the political executive or of anybody or authority of the State other than the Legislature while neither suspending nor removing them. The fact that some of these exercises have not been resorted to in practice so far, does not militate against the legal position which emerges from the clear language of Article 356(1). In this connection, we may refer to what Dr. Ambedkar had to say on the subject in the Constituent Assembly. The relevant extract from his speech is reproduced in paragraph 21 above. Hence it is possible for the President to use only some of the requisite powers vested in him under Article 356(1) to meet the situation in question. He does not have to use all the powers to meet all the situations whatever the kind and degree of the failure of the Constitutional machinery in the State. To that extent, the contention is indeed valid. However, whether in a particular situation the extent of powers used in proper and justifiable is a question which would remain debatable and beyond judicially discoverable and manageable standards unless the exercise of the excessive power is so palpably irrational or mala fide as to invite judicial intervention. In facts, once the issuance of the Proclamation is held valid, the scrutiny of the kind and degree of power used under the Proclamation, falls in a narrow compass. There is every risk and fear of the Court undertaking upon itself the task of evaluating with fine scales and through its own lenses the comparative merits of one rather than the other measure. The Court will thus travel unwittingly into the political arena and subject itself more readily to the charges of encroaching upon policy making. The 'political thicker' objection sticks more easily in such circumstances. Although, therefore, on the language of Article 356(1), it is legal to hold that the President may exercise only some of the powers given to him, in practice it may not always be easy to demonstrate the excessive use of the power. "
772. The learned counsel further referred to Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426 wherein at page 458 paragraph 26, it was observed as follows:-
773. "26.1t is not necessary to dilate upon the case of Zia-ur-Rahman any further for the reason that at present we are concerned only with Objectives Resolution in the Constitution appended as preamble. Even in that capacity it invariably has remained preamble in all the four Constitutions including the Interim Constitution of 1972, and therefore, it has to be read for the purpose of proper interpretation in order to find out as to what scheme of governance has been contemplated. Let us assume that it does not authoritatively provide grund norm and also it does not describe specifically the basic structure of the Constitution, even then also it does help in interpreting and understanding the scheme of governance and salient features of the Constitution which are described therein including Islamic provisions, federalism and Parliamentary form of Government and fully securing independence of judiciary. Islamic provisions are very much embedded in the Constitution of 1973 as Article 2 thereof envisages that Islam shall be the State religion of Pakistan and Article 227 provides that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Further, Article 228 provides for setting up Council of Islamic Ideology. Similar provisions existed in Articles 197' and 198 of the Constitution of 1956 and Articles 199 too 207 of the Constitution of 1962. Similar Islamic provisions existed in the Interim Constitution of 1972 from Articles 251 to 259. In nutshell it can be said that basic structure as such is not specifically mentioned in the Constitution of 1973 but Objectives Resolution as preamble of the Constitution and now inserted as the substantive part in the shape of Article 2A when read with other provisions of the Constitution reflects salient features of the Constitution highlighting federalism, Parliamentary form of Government blended with Islamic provisions."
774. He also referred to paragraph 43 of the report at pages 469-470, which is as under:-
775. "43. It is noteworthy that when in 1977 this Court was hearing the case of Begum Nusrat Bhutto Constitution of 1973 was in the field in which Article 58 was there in its original form without addition of sub Article (2)(a)(b). Under Article 58 at that time President could dissolve National Assembly only when he was so advised by the Prime Minister. In such circumstances, the Court had to keep the factual background in view in conjunction with position enunciated in the Constitution particularly when there was no remedy provided to meet such an unforeseen situation with which the country and the Court were confronted. After a very careful and long hearing .and examination of case-law on the subject and consideration of arguments advanced by both sides, this Court came to the conclusion which is succinctly summarised in the leading judgment of the learned Chief Justice at page 721 of the report which is reproduced as under:-
776. 'The final position as emerging from this somewhat lengthy discussion of the various questions arising in this case may briefly be summed up as follows:
(i) ???????? 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 pure theory of law. Not only has this theory not been universally accepted, or applied, it is also open to serious criticism on the ground that, by making effectiveness of the political change as the sole condition or criticism of its legality, it 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, be determined by a consideration of the total milieu in which the change is brought about, including the motivation of those responsible for the change, and the extent to which the old Legal Order is sought to be preserved or suppressed.
(ii) ??????? 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 a purely temporary nature and for a specified limited purpose. Such a phenomenon can more appropriately be described as one of Constitutional deviation rather than of revolution.
(iii) ?????? That examined in this light, the Proclamation of Martial Law on the 5th of July 1977, appears to be an extra-Constitutional step necessitated by the complete break-down and erosion of the Constitutional and moral authority of the Government of Mr. Z.A. Bhutto, as a result of the unprecedented protest movement launched by the Pakistan National Alliance against the alleged massive rigging of elections to the 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 warring factions which had brought the country to the brink of disaster.
(iv) ?????? That the imposition of Martial Law, therefore, stands validated on the doctrine of necessity, and the Chief Martial Law Administrator 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.
(v) ??????? That it has also become clear from a review of the events resulting in the culmination of Martial Law, Administrator, that the 1973 Constitution still remains the supreme law, subject to the condition that certain parts thereof have been held in abeyance on account of State necessity; and the President of Pakistan as well as the superior Courts continue td function under this Constitution. In other words, this is not a case where the old Legal Order 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 purpose of the restoration of democratic institutions under the 1973 Constitution.
(vi) ?????? That, accordingly the superior Courts continue to have the power of 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, Presidential Order or Ordinance, and
(vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights as valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an 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. "
31. The learned counsel next referred to Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lahore 38, wherein at pages 60, 61 and 62 in paragraphs 37 to 41, it was observed as under:
777. "37. Before adverting to the contentions raised by the learned counsel for the parties, it would be benefit to state some of the features of our Constitution. Admittedly, Pakistan is an Islamic Republic having Federal character as is stated in Article 1 of the Constitution. In such a system there is a clear division and demarcation of powers between the Federation and the Federating Units. The Federation cannot claim any ascendancy over its Units.
778. 38 ??????? Although we agree with Mr. Aitzaz Ahsan that the division of powers between the Federation and its Units must yield to supreme interest of unity and solidarity of Federation and in the event of emergency or calamity like Constitutional breakdown, Federation must possess the necessary power to intervene but this power besides being drastic constitutes an inroad into the Provincial autonomy and if not properly used can destroy equilibrium between the Federation and the Federating Units which besides leading to the Units which is not healthy for a Federation. As pointed out by' late Mr. A.K. Brohi in his treatise titled Fundamental Law of Pakistan, First Edition, 1958, at page 277, when a Proclamation of Emergency is enforced, the federal character of a polity gets transformed into one of unitary form and the National Government becomes the paramount and supreme authority within the country. The following statement of law appears in an Introduction to the Study of the Law of the Constitution by A.V. Dicey, 10th Edition, at page 151:-
779. 'The distribution of powers is an essential feature of Federalism. The object for which a Federal State is formed involves a division of authority between the National Government and the separate States. The powers given to the nation form in effect so many limitations upon the authority of the separate States, and as it is not intended that the Central Government should have the opportunity of encroaching upon the rights retained by the States, its sphere of action necessarily becomes the object of rigorous definition.'
780. 39 .A reference to Constitution of various countries where the Federal system is in vogue like United States of America and Canada shows that no such specific power is reserved in the Constitution while in other countries intervention by the Federation is permitted only in the event of external aggression or internal disturbances beyond the control of the Federating Units. However, under our Constitution the Federation has been granted power to intervene in the event of emergency which may be physical, fiscal or Constitutional in nature. Article 234 of the Constitution deals with the last kind of emergency. Similar is the language of Article 356 of the Indian Constitution and section 92-A of the Government of India Act, 1935, as amended.
781. '40. In the case of Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738 the Supreme Court of Pakistan at page 829 while construing the nature of Article 234 observed that:-
782. 'There can be no cavil with the broad proposition canvassed by Mr. Sharif-ud-Din, that in a Constitution based on a federal democractic concept an emergency provision of the nature of Article 234 (ibid) is necessary to preserve the system but the exercise of this power, which undoubtedly has a far-reaching and drastic consequences is not left by the Framers of Constitution totally unbridled and uncontrolled. The commentators on Constitutional Laws have also expressed great circumspection on the exercise of such power by a functionary vested with the discretion under the Constitution'. "
783. Again at page 831, it was observed that:-
784. "From the above comments, it is quite clear that while existence of a provision in the nature of Article 234 (ibid) has been felt necessary in a Constitution based on Federal democratic structure but at the same time the abuse of the exercise of such powers by the, functionaries vested with the discretion under the Constitution for the purposes alien to the scope of such provision cannot be ruled out totally."
785. "41. While commenting on Article 356 of Indian Constitution which is akin to Article 234 of our Constitution H.M. Seervai in his commentary on Constitutional Law of India (3rd Edition, Volume 2) at page 2628, paragraph 29.22 states that:-
786. 'It is clear from the judgments of the Privy Council and our Supreme Court cited above, that the literal meaning of an Article ought not to be given to it if it practically destroys the autonomy of the States. In this connection, it may be noted that if the framers of our Constitution had intended that the Union should be able to supervise and interfere in the administration of States to secure good Government the framers would have adopted a unitary Constitution for India with a large devolution of power in favour of the States. The very fact that the framers enacted a Federal Constitution with a Parliamentary form of Government for the Union and the States shows that internal sovereignty was to be divided between the Union and the States. A literal construction of the wide general words of Article 356 which could enable the Union Executive to cut at the root of the democratic Parliamentary form of Government. In the States must be rejected in favour of a construction which would preserve that form of Government. The exercise of that power must be limited to a failure of 'Constitutional machinery', that is to preserving the Parliamentary form of Government from internal subversion, or from a deliberate deadlock created by a party or a group of parties, or from a deadlock arising from an indecisive electoral verdict which makes the carrying on of Government practically impossible.'
787. If follows from the above that the provisions like Article 234 which are in the nature of an exception must be sparingly used and strictly construed."
788. It was further referred from the same report (page 68, para. 55, page 77, para.79, page 82, para. 98, and page 83, para. 98 which read thus:-
789. "55. Learned counsel for the petitioner has pointed out that the Cabinet headed by the petitioner comprised of 25 Ministers and 24 Advisors out of whom 14 Ministers and 4 Advisors resigned. There is nothing on the record to show that these resignations resulted in impairment of the functions of the Government of Punjab in any manner. As already observed, resignations of Ministers are by itself not a ground for arriving at the conclusion that a situation had arisen where the affairs of the Province cannot be run in accordance with the Constitution. Even on factual plane, therefore, it is not shown that on account of resignations of the Ministers a Constitutional breakdown had occurred or that the functioning of the Government had been impaired.
79. Before parting with this aspect of the case, we may also take notice of the argument of Raja Muhammad Anwar, Advocate who while relying on Article 236(2) of the Constitution has contended that the Proclamation 'cannot be struck down by this Court on any ground whatsoever. We need not dilate upon this aspect of the case in view of the pronouncement of the Supreme Court in Pir Sabir Shah's case (supra), wherein similar objection raised was repelled in the following words:--
790. 'In the present case the Proclamation has been issued under Article 234, it has not been protected by any Article like Articles 281 and 270-A, which were the subject-matter of the above judgments in the cases of Zia-ur-Rehman, Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra) but the protection is sought under clause (2) of Article 236 of the Constitution, which is of general nature purporting to protect all proclamations issued under Part X of the Constitution. I am, therefore, of the view that clause (2) of Article 236 will not cover a Proclamation which is without jurisdiction, coram non judice or mala tide and the superior Courts will have' jurisdiction to examine a proclamation from the above three jurisdictional legal aspects.
791. I am, therefore, of the view that in spite of the bar contained in Article 236(2) (supra) the superior Courts in exercise of their power of judicial review can examine the validity of the Proclamation issued under Article 234 of the Constitution and if it is found that the Proclamation is either issued mala fide or it is in excess of jurisdiction or without jurisdiction or is coram non judice the Courts can declare it as invalid and unconstitutional.'
98. Strong exception was taken by the leaned counsel for the respondents to this course being adopted by the petitioner's learned counsel. Mr. Fakhar-ud-Din G. Ebrahim, Advocate for the Governor also filed an application praying that the petitioner be directed to prove the plea of mala fide on facts which he had set up in the petition. However, we have not been able to discover any principle under which a party can be prevented from giving up a plea raised by it. We cannot, therefore, direct the petitioner to prove this fact. As to whether the petitioner was justified in raising this plea initially and if not what is its effect will be considered while dealing with civil miscellaneous applications filed by the respondent. Some of the learned counsel for the respondents were also of the view that unless an action is shown to be mala fide in fact it cannot be dubbed as suffering from malice in law.. We are unable to agree as the distinction between malice in law and malice on facts is well-known. An action is said to be suffering from mala fide on facts if it is taken due to some personal grudge, animosity, or for some personal benefit. Thus, the state of mind of the person taking action is of great importance. On the other hand, an action is said to be suffering from malice in law if the authority taking the action is not competent-to do so or has acted beyond its powers or in violation of the law applicable even though it may have acted bona fide and without ill-will.
792. This distinction has brought about in Shearer and another v Shields 1994 A.C. 808 in the following words:
793. 'Between malice in fact and 'malice in law' there is a broad distinction which is not peculiar to any particular system of jurisdiction. A person who inflicts an injury another person in contravention of the law is not allowed, to say that he did so with an innocent mind; he is taken to know the law. He may, therefore, be guilty of malice in, law., although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently'. "
794. The difference between the two species of malice has been noted with great clarity, if we may say so with respect by Muhammad Afzal Lone, J. (as he then was) in Ghulam Mustafa Khar v. Federation of Pakistan PLD 1988 Lahore 49 in the following words:
795. 'Malice in law is different from the malice as known in the common parlance which is usually associated-with evil motive influencing the mind of the person committing the malicious act. An order in violation of law is mala fide in law, though actual may not be present in the mind of the Authority passing the order.'
796. Reference may also be made to the case of Federation of Pakistan v Ghulam Mustafa Khar PLD 1989 SC 26:
797. 'While strong and cogent evidence is necessary to prove mala fides on facts, for malice in law it is sufficient if it is shown that the impugned action is not countenanced by the law under which the authority had acted.'
798. "99. Applying these principles to the present case it is clear that the report made by the Governor, the Proclamation issued under Article 234 of the Constitution as also the order of the Governor directing the petitioner to obtain vote of confidence suffer from malice in law inasmuch as Article 234 of the Constitution could not have been invoked on the ground that the Members of Cabinet had resigned or that the Chief Minister had lost confidence of the majority at least without putting him to floor test and also because Governor could not during the currency of the Proclamation ask the Chief Minister who has ceased to function to obtain vote of confidence. "
799. Learned counsel further referred to Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, where at page 423 paragraph 20, it was observed as follows:-
800. "20. Before touching upon the submissions made by the learned counsel who have appeared in the above cases, it may be pertinent to point out peculiar features of our country, namely:
(i) Our country is not a secular State but it is an Islamic Republic of Pakistan as per clause (1) of Article 2 of the Constitution, whereas as per Article 2 thereof, Islam is the State religion. It may further be observed that under Article 2A of the Constitution, the principles and provisions set out in the Objectives Resolution reproduced in the Annexure to the Constitution have been made substantive part of the Constitution, which inter alia enjoins that 'wherein the independence of Judiciary shall be fully secured'. It may also be mentioned that under clause (I) of Article 227, it has been provided that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. We will, therefore, have to examine the question of appointment of Judges with reference to Islamic concept.
(ii) ??????? We have adopted Federal type of Government under the Constitution. The Constitution envisages tracheotomy of power inter se between the three organs of the State, namely, the Legislature, the Executive and the Judiciary. Each organ of the State is required to function/operate within the bounds specified in the Constitution.
(iii) ?????? That there exist some Constitutional conventions which are to be invoked while construing Constitutional provisions relating to the appointment/transfers of Judges of the superior Courts."
801. He also referred to Sardar Mulimmad Muqeem Khoso v. President of Pakistan PLD 1994 SC 412, wherein at page 435, para. 36(f), it was observed as under:-
802. "36. I may point out that under the Objectives Resolution which has now become substantial part of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) by virtue of Article 2A thereof, sovereignty over the entire Universe belongs to Almighty Allah alone, and authority to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Him, is a sacred trust. Any abuse of position on the part of a chosen representative will amount to breach of the above sacred trust entailing heavenly and worldly punishment. The aforesaid Acts IV and V of 1977 and the President Order 16 of.1977 and the Order (i.e. P.0.17 of 1977) were designed and intended to curb and discourage the tendency on the part of public representatives to exploit their position as such for their personal gains. Unfortunately the above statutory provisions, which are for public good in order to ensure unadulterated and incorrupt democracy, have not been effectively enforced and given effect, with the result that some of the public representatives become purchasable commodity and they change loyalty for monetary and other gainful considerations and thereby commit breach of the mandate of their voters and the political party to which they belong. This betrayal of trust is now popularly known as horse trading. This cancerous disease in the polity of our country is contributing a lot in destabilizing the democratic institutions and thereby adversely affecting the economic growth of the comity of nations. The above tendency is to be checked and discouraged at all levels. He next referred to Darwesh M. Arbey v. Federation of Pakistan (PLD 1980 Lahore 206), wherein it was observed at page 266, paragraph 12, which reads thus:-
803. "12. Fundamental Rights are also guaranteed by the Constitution but during Proclamation of Emergency suspension of Articles 9 to 25 mentioned in S.R.C. 354(1)/77, dated 21st April, 1977, during the period the Armed Forces are acting in aid of civil power in a particular area cannot be enforced by moving any Court including the Supreme Court of Pakistan. Reference was made to Fundamental Right 14(1) of the Constitution, which deals with the dignity of a man and subject to the law the privacy of home has been made inviolable. It is mentioned in Verse 27, Part 18 of An-Nur (The Light) of Holy Qur'an, English Translation by Marmaduke Pickthall, Urdu Translation by Maulana Fateh Muhammad Jallandhri published by Taj Company Limited, Karachi, as under:"
804. "O ye who believe ! Enter not houses other than your own without first announcing your presence and invoking peace upon the folk thereof. That is better for you, that ye may be heedful.
805. Privacy of home is, therefore, inviolable and is protected
806. Verses 30 and 34 from Al-Baqara (The Cow) of Holy Book, Part I, are reproduced here which clearly mention that Man is the Viceroy of God on earth and his dignity, therefore, cannot be touched:"
807. "And when the Lord said unto the angels: Lo! am about to place viceroy in the earth. "
808. "And when We said unto the angels: Prostrate yourselves before Adam they fell prostrate, all save lblis."
809. "Inhuman treatment and torture of any kind is, therefore, absolutely prohibited. "
810. In my humble view, suspension of certain Fundamental Rights and in particular Fundamental Right 14(1) comes in direct conflict with the Holy Qur'an. Any legislative or executive Authority cannot enact a law or promulgate any Ordinance or Order in view of Article 227 of the Constitution which clearly prohibits the enactment of law which is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. I am conscious of the fact that Courts are not empowered to strike down such laws. But any person or Authority acting contrary to the provisions of Article 227 ' is likely to run the risk of the consequences as envisaged in Article 6 of the Constitution."
811. Reference was also made to Niaz Ahamd Khan v. Province of Sindh (PLD 1977 Karachi 604), wherein at page 669 (paras. 5 and 6) it was observed thus:-
812. Coming to the other contention of Mr. Khalid Ishaque that the amendment made is repugnant to the Injunctions of Islam, the learned counsel pointed out that according to the Holy Qur'an and the Sunnah the obligation to do justice to all manner of people and at all the times is a paramount duty and a cardinal principle of Islam. This is undoubtedly true as is evident from the following verses from the Holy Qur' an:
(i) In Surah Al-A'raf, Verse 29, the opening line is:
813. "Say my Lord enjoins justice
(1) PLD 1973 SC 49 (2) PLD 1976 Kar. 1368
(ii) "Surah Al-Nisa, Verse 135
814. "O believers, uphold justice and bear witness in God's name even though your decision and evidence may affect your person or your parents or your relations. The parties to a dispute may be rich or poor.
815. God is interested more than you in their welfare.
816. So, do not hesitate to act justly because of your own inclinations.
817. Should you prevaricate or hesitate to face the truth.
818. You will have to account for it for God is aware of what you do. "
(iii) ?????? Surah Al-Nisa, Verse 58:
819. "O Muslims,
820. God commands you to, entrust responsibility to those who are capable of discharging it.
821. And when you determine between people do so justly.
822. This is invaluable advice from God Who Hears and Sees everything. "
823. "6. There is, therefore, substance in the contention of the learned counsel that to deprive the Courts of their function to adjudicate upon a complaint by a citizen against the State violates a fundamental concept of Islam. The spirit that motivated this argument of the learned counsel is indeed admirable and moreso for in the recent past the Parliament has deemed it fit to make several Constitutional Amendments relating to the Judiciary which have not only endangered the independence of Judiciary but have abridged or made ineffective our vital jurisdiction under Article 199 of the Constitution. We enquired from the learned counsel as to the power of this Court to declare a provision of the Constitution invalid as being repugnant to Islam and in reply he invited our attention to Article 2 of the Constitution which provides that Islam shall be the State religion and to Article 4 under which every individual is guaranteed an inalienable right to enjoy the protection of law and to be treated in accordance with law, and went on to .argue that the law contemplated in Article 4 must of necessity include the Divine Law.--The Holy Qur'an and the Sunnah --- for that is the very raison d'etre for the State of Pakistan. It is, however, difficult to accept this contention that Article 2 enables this Court to apply the touchstone of Shariat Law in determining the validity or otherwise of a Constitutional provision though in the words of Zullah, J., in the case of Nizam Khan v. Additional District Judge, Lyallpur (PLD 1976 Lah. 930):"
824. "When Islam is ordained as way of life of the State of Pakistan it does not carry merely spiritual meaning of submission in faith and prayer but also has ramifications in other aspects, of life like political and social including juridical."
825. Reference was also made to State of Rajasthan v. Union of India (AIR 1977 SC 1360), wherein at page 1409, paragraph 140, it was observed, thus:-
826. ?
140. It would be clear from this discussion that when a proclamation is validly issued by the President under Article 356, clause (1), it has immediate force and effect, the moment it is issued and where, by the proclamation, the President has assumed to himself the powers of the Governor under sub-clause (a), he is entitled to exercise those powers as fully and effectually as the Governor, during the period of two months when the Proclamation is in operation. There is no limitation imposed by any Article of the Constitution that these powers of the Governor can be exercised by the President only when they have no irreversible consequence and where they have such consequence, they cannot be exercised until the Proclamation is approved by both Houses of Parliament. Whilst the Proclamation is in force during the period of two months, the President can exercise all the powers of the Governor assumed by him and the Court cannot read any limitation which would have the effect of cutting down the width and amplitude of such powers by confining their exercise only to those cases where no irretrievable consequence would ensue which would be beyond repair. When any power of the Governor is assumed by the President -under the Proclamation, .,the President can, during the two months when the Proclamation is in force, do whatever the Governor could in exercise of such power and it would be immaterial whether the consequence of exercise. of such power is final and irrevocable or not. To hold otherwise would be to refuse to give full effect to .the proclamation which, as pointed out above, continues to operate with full force. and vigour during the period of two months. It would be rewriting Article 356 and making approval of both Houses of Parliament a condition precedent to the coming into force of the Proclamation so far as the particular power is concerned. Now one of the powers of the Governor which can be assumed by the President under the Proclamation is the power to dissolve the Legislative Assembly of the State under Article 174(2)(b) and, therefore, the President also can dissolve the Legislative Assembly during the time that the proclamation is in force. It is difficult to see how the exercise of this power by the President can be made conditional on the approval of the Proclamation by the two Houses of Parliament. If the Proclamation has full force and effect during the period of two months even without approval by the two Houses of Parliament the President certainly can exercise the power of the Governor to dissolve the Legislative Assembly of the State without waiting for the approval of the Proclamation by both Houses of Parliament. It is true that once the President in exercise of the power assumed by him under the Proclamation, it would be impossible to restore the status quo ante if the proclamation is not approved by the Houses of Parliament, but that is the inevitable consequence flowing from the exercise of the power which the President undoubtedly possesses during the time that the proclamation is in force. This is clearly a necessary power because there may conceivably 'be - cases where the exercise of the power of dissolution of the Legislative Assembly may become imperative in order to remedy the situation arising on account of break down of the Constitutional machinery in the State and failure to exercise this power promptly may frustrate the basic object and purpose of a proclamation under Article 356, clause (1). It is, therefore, not possible to accede to the argument of the petitioners, in the writ petitions that during the period of two months before approval of the proclamation by the two Houses of Parliament, no irreversible action, such as dissolution of the Legislative Assembly of the State, can be taken by the President. The power to dissolve the Legislative Assembly of the State cannot also be denied to the President on the ground that the Proclamation may not be approved by one or the other House of Parliament. In the first place, the existence of a Constitutional power or the validity of its exercise cannot be determined by reference to a possible contingency. The Court cannot enter the realm of conjecture and surmise and speculate as to what would be the position at the expiration of two months--whether the proclamation will be approved by both Houses of Parliament or not. Secondly, it is entirely immaterial whether or not the proclamation is approved by both Houses of Parliament, because even if it is not so approved, it would continue to be in full force and effect, for a period of two months, unless sooner revoked. It is also difficult to appreciate How Article 357, clause (1), sub-clause (c) can possibly assist the argument of the petitioners. That sub-clause provides that when the House of the People is-not in session, the President can authorise expenditure out of the Consolidated Fund of the State pending receipt of sanction of such expenditure by the Parliament and consequently, it is possible that if Parliament does not sanction such expenditure, serious difficulty might arise. But that is merely a theoretical possibility which in practical reality of politics would hardly arise and it need not deflect us from placing on the language of Article 356 the only correct interpretation which its language bears. When the President issues a Proclamation on the advice of the Central Government, it stands to reason that the House of the People in which the Central Government enjoys majority would sanction expenditure out of the Consolidated Fund of the State. We are, therefore, of the view that even during the period of two months, without the approval of the Proclamation by both Houses of Parliament, the President can dissolve the Legislative Assembly of the State in exercise of the power of the Governor under Article 174(2)(b) assumed by him under the proclamation." reference was made to Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 38), wherein Saiduzzaman Siddiqui, J. at page 839(tt) observed as under;-
827. "In view of the above, discussed legal position, I am of the view that the satisfaction of the President under Article 234 ibid with regard to the existence of a situation in which the Government of the Province cannot be run in accordance with the provisions of the Constitution cannot be treated subjective. The satisfaction of the President in this regard must be based on existence of objective conditions justifying issue of Proclamation under Article 234 ibid. However, the Court while examining the material used by the President in forming his satisfaction as to the existence of conditions mentioned in Article 234 ibid cannot ? sit as a Court of Appeal and inquire into sufficiency or otherwise of the material. If the Court finds that the material used by the President in arriving at his satisfaction bears nexus to the objects of Article 234 ibid it cannot interfere with the Proclamatidn on the ground that there was not sufficient material before the President to express his satisfaction with regard to the existence of conditions which would justify issuance of Proclamation under Article 234 ibid.
32. Syed Shabbar Raza Rizvi, learned counsel has referred to two Verses of the Sura Nisa from Tatheem-ul-Quran by Abul-A'la-Mudoodi, which are,thus;-
828. He further referred to Nahjul Balagha, Sermons, Letters and Sayings of Imam Ali, wherein qualifications of a Governor and his responsibilities have been stated in the following words:
829. "The qualifications of a Governor and his responsibilities:
830. Then, know O'Malilthat I have sent you to an area where there have been Governments before you, both just as well as .oppressive. People will now watch your dealings as you used to watch the dealings of the rulers before you, and they (people) will criticise you as you criticized them (rulers). Surely, the virtuous are known by the reputation that Allah circulates for them through the tongues of His creatures. Therefore, the best collection with you should be the collection of good deeds. So, control your passions and check your heart from doing what is not lawful for you, because checking the heart means detaining it just half way between what it likes and dislikes.
831. Habituate your heart to mercy for the subjects and to affection and kindness for them. Do not stand over them like greedy beasts who feel it is enough to devour them, since they are of two kinds, either your brother in religion or one like you in creation. They will commit slips and encounter mistakes. They may act wrongly, wilfully or by neglect. So, extend to them your forgiveness and pardon, in the same way as you would like Allah to extend His forgiveness and pardon to you, because you are over .them and your responsible Commander (Imam) is over you while Allah is over him who has appointed you. He (Allah) has sought you to manage their affairs and has tried you through them.
832. Do not set yourself to fight Allah because you have no power before His power and you cannot do without His pardon and mercy. Do not repent of forgiving or be merciful it; punishing. Do not act hastily during anger if you can find way out of it. Do not say: 'I have been given authority, I should be obeyed when I order,' because it engenders confusion in the heart; weakens the religion and takes one near ruin. If the Authority in which you are placed produces pride or vanity in you then look at the greatness of the realm of Allah over you and His might the like of which might you do not even possess over yourself. This will curb your haughtiness, cure you of your high temper and bring back to you your wisdom which had gone away from you.
833. Beware of comparing yourself to Allah in His greatness or likening yourself to Him in His power, for Allah humiliates every claimant of power and disgraces every one who is haughty.
834. Do justice for Allah and do justice towards the people, as against yourself, your near ones and those of your subjects for whom you have a liking, because if you do not do so you will be oppressive, and when a person oppresses the creatures of Allah then, instead of His creatures, Allah becomes his opponent, and when Allah is the opponent of a person He tramples his plea; and we will remain in the position of being at war with Allah until he gives it up and repents. Nothing is more inducive of the .reversal of Allah's bounty or for the hastening of His retribution than continuance in oppression, because Allah hears the prayer of the oppressed and is on the look out for the oppressors. "
835. In the same book. qualifications of Chief Judge and his responsibilities have also been explained, which are as under:
836. "2. Chief Justice.
837. For the settlement of disputes among people select him who is the most distinguished of your subjects in your view. The cases (coming before him) should not, vex him, disputation should not enrage him, he should not insist on any wrong point, and should not grudge accepting the truth when he perceives it; he should not lean towards greed and should not content himself with a cursory understanding (of a matter) without going thoroughly into it. He should be most ready to stop (to ponder) on doubtful points, most regardful of arguments, least disgusted at the quarrel of litigants, most patient at probing into matters and most fearless at the time of passing judgment. Praise should not make him vain and elation should not make him lean (to any side). Such people are very few.
838. Then, very often check his decisions and allow him so much money (as remuneration) that he has no excuse worth hearing (for not being honest) and there remains no occasion for him to go to others for his needs. Give him that rank in. your audience for which no one else among your chiefs aspires, so that he remains safe from the harm of those around you. You should have a piercing eye in this matter because this religion has formerly been a prisoner in the hands of vicious persons when action was taken according to passion, and worldly wealth was sought.."
839. In the said Book, as to appointment of 'Executive Officers' and to check their performance during their service, some fundamental principles have been explained, in the following words:-
840. "3. Executive Officers:
841. Thereafter, look into the affairs of your executives. Give them appointment after tests and do not appoint them according to partiality or favouritism, because these two things constitute sources of injustice and unfairness. Select among them those who are people of experience and modesty, hailing from virtuous houses, having been previously in Islam, because such persons possess high manners and untarnished honour. They are the least inclined towards greed and always have their eyes on the ends of matters.
842. Give them an abundant livelihood (by way of salary) because this gives them the strength to maintain themselves in order and not to have an eye upon the funds in their custody, and it would be an argument against them if they disobeyed your orders or misappropriated your trust. You should also check their activities and have people who report on them who should be truthful and faithful, because your watching their actions secretly will urge them to preserve trust with and to be kind to the people. Be careful of assistants. If any one of them extends his hands towards misappropriation and the reports of your reporters reaching you confirm it, that should be regarded enough evidence. You should then inflict corporal punishment on him and recover what he has misappropriated. You should put him in a place of disgrace, blacklist him with (the charge of) misappropriation and make him wear the necklace of shame for his offence.
843. The learned counsel then referred to 'Muhammad, The Final Messenger' by Dr. Majid Ali Khan, wherein, while referring to 'Last Sermon' of the Holy Prophet (peace be upon him), his following words were quoted, thus:-
844. "(I warn you that) your lives; your properties and your honour are as sacred to one another as this Sacred Day, as this Sacred Month and as this Sacred City." (Sahih al-Bukhare, Sahih Muslim, and Sunan Abi Dawud).
845. Reference was also made to a book titled "Adal" a Collective Responsibility of an Islamic State by Irfan Hasan Siddiqui, where 'Adal' was dilated upon the following words:-
846. He next referred to 'Constitution of Islamic Republic of Iran' wherein under Article 156, Judiciary and its duties and powers, have been laid down. Relevam Article reads, thus:-
847. "Article 156:
848. The Judiciary is an independent power that supports individual and social rights of the people and is responsible for administration of justice. The Judiciary is also charged to perform the following duties:
1. Investigation and issuance of decisions in respect of grievances, complaints and cases of injustice, settlement of claims and litigation, and removal of disputes and adoption of necessary decisions on such non-litigable affairs determined by law.
2. Restoration of public rights and promotion of justice and legal freedoms.
3. Supervision over good administration of law
4. Detection of crimes and offences, prosecution, punishment and chastisement of wrongdoers and giving out Islamic Justice.
849. Taking adequate measures to prevent crime and reform criminals."
850. The learned counsel lastly referred to 'Society and State in Islam', An Introduction by Hasan Askari in which the learned author has observed as under:-
851. "The basic reform which the prophets rendered was to liberate men from the Lordship of man ... ...they intended to instruct man in a system which was just, wherein man is neither slave nor lord of another man. From the beginning, whoever came and gave a prophetic call, gave the same call: Men, serve only God and besides Him do not regard anything as God.
852. This was the call which liberated the spirit and the mind of man, and unlocked his mental and material powers ... ...This was the charter of the real freedom of man. Hence, Qur'an says of the Prophet: "This prophet takes away the burden under which they were trembling. and cuts the shackles with which they were tied up.
853. The cornerstone of the Islamic politics is this principle that the power to command and to make laws on which this command rests be taken away from man both individually and collectively. There is no such essential right that one should order and the other should obey: one should abide by them. "The command belongs to none but God. His command is that none besides Him should be worshipped, and this is the religion. They ask whether they have any share in the right to command. Tell them. that all the rights to command are of God's."
854. But he will say: become God's men
855. "The primary features of the Islamic State that follow from the aforesaid statements of Qur'an are the following:
(i) No person, family, class, or group, and even all the people do not own the sovereignty. The real sovereign is God, and all the rest are his subjects.
(ii) The power to make laws also belongs to God. All the Muslims combined together can neither make laws nor change any law that is made by God.
(iii) The Islamic State will be based on the laws which are given by the prophet on behalf of God. The Government which runs this State will be obeyed as much as it implements the laws of God. "
33. Having considered the submissions made by Syed Shabbar Raza Rizvi and the case-law cited by him, the answer to all the pleas raised by him is that the Proclamation issued by the President was based on existence of objective conditions justifying issuance of Proclamation of Emergency under Article 232(1) of the Constitution. I agree with Syed Shabbar Raza Rizvi that when the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Federal Government to satisfy as to the existence of pre-conditions justifying issuance of Proclamation of Emergency under Article 2320) of the Constitution. The same view was taken in the case of S.R. Bommai v. Union of India (AIR 1994 SC 1918), wherein it was inter alia observed that where such material would be exclusively within the knowledge of the Union Government, in view of the provisions of section 106 of the Evidence Act, the burden of proving the existence of such material would be on the Union Government. However, it is well-settled that this Court while examining the material cannot sit as a Court of appeal and inquire into the sufficiency or otherwise of the same. I am of the view that the material used by the President in arriving at his 'satisfaction' bore nexus with the objects of Article 232(1). This Court, therefore, cannot interfere with the Proclamation, inter alia, on the ground that there did not exist on 28th May, 1998 any material, which had the direct nexus for the purpose of Proclamation. Mr. Shabbar Raza Rizvi has taken great pains in highlighting the concept of Adal in an Islamic State with reference to material referred above. There can be no cavil with the responsibilities of the Judges and the Executive Authorities as referred in Nahjul Balagha, Sermons letters and Sayings of Imam Ali. Reference was aptly made to the last sermon of the Holy Prophet (peace be upon him), in the context of the controversy raised herein and other material with reference to society and the State in Islam. I appreciate the interest taken by Syed Shabbar Raza Rizvi and the research made in digging out the relevant material for assistance of the Court.
34. Mr. Hamid Khan, learned counsel appearing on behalf of Tehrik-eInsaf, highlighted the history of imposition of emergency in Pakistan and India, He submitted that in Pakistan the first Proclamation of Emergency had been issued on 27th March, 1955, second on 6th September, 1965 and the third on 23rd November, 1971, followed by another emergency on 15th August, 1973, both of which were revoked in 1985, whereas in India First Emergency was proclaimed on 26th October, 1962 and second time it was proclaimed on 3rd December, 1971. He submitted' that Pakistan has laboured under Emergency for a period of more than 20 years while in India it continued for more than 10 years and that emergencies imposed in 1965 and 1971 due to armed conflicts between India and Pakistan, were only justified.
35. Mr. Hamid Khan vehemently argued that mere conducting of nuclear tests by one country cannot be regarded as a threat to the security of another and that in' the context of Pakistan-India relations, particularly, the more dangerous proposition will be to allow bellicose utterances by political leaders to constitute threats of aggression and form basis for declaration of emergency and denial of fundamental rights, especially of those political leaders, who tend to make pugnacious remarks for domestic consumption due to their weak coalition Governments. He further argued that the instances where there were actual armed conflicts between India and Pakistan in 1965 and 1971. the imposition o emergency was positive while in cases where emergencies were proclaimed fog domestic reasons and to attain power, were the negative sides of the same, it that, in such cases after imposition, emergencies were allowed to perpetrate fog an indefinite period and that at a number of occasions new emergencies were replaced with the previous ones.
36. He argued that since there was no large scale movement of troops with threatening military posture or actual happening of an armed conflict, therefore, imposition of Emergency on 28th May, 1998, was totally out of character as mere nuclear tests could not pose threats of external aggression. While dilating upon 'internal disturbances' the learned counsel submitted that following were the tests recognized at international level :-
(i) ???????? It should be a grave and public emergency threatening public
856. ??????????? tranquillity.
(ii) ??????? It must be actual or imminent
(iii) ?????? Its effects must involve the entire nation
(iv) ?????? There must be a continuous threat to the lives of the community
(v) ??????? Crisis and danger must be exceptional. He further elaborated that 'internal disturbances' means complete erosion of the authority of Provincial and Federal Governments
37. He further argued that suspension, of enforcement of Fundamental Rights by the President under clause (2) of Article 233 of the Constitution is without any legal or Constitutional basis and is, therefore, clearly mala tide. Ironically, the people that have stood by the Government in the matter of nuclear testing and have rather goaded the Government to do so, have been deprived of their Fundamental Rights for showing solidarity with the Government and instead it has tried to impose dictatorship on a nation which stands united in its support for nuclear testing and has offered to withstand sacrifices in consequence thereof. He also specifically mentioned those Fundamental Rights, which have been suspended under the Proclamation i.e. Articles 10, 16. 17, 18, 19, 23, 24 and 25 of the Constitution. so vested in the President, in the Parliament and in the Federal Government as a consequence of the Proclamation of Emergency are extremely -vast and have the potential to be abused.
857. It was also argued that adoption of resolution by the Parliament regarding Proclamation of Emergency and suspension of Fundamental Rights could not undo or in any way validate the inherent illegality and unconstitutionality of Proclamation of Emergency and order of suspension of enforcement of Fundamental Rights.
39. The precise submission of Mr. Hamid Khan, learned counsel for the petitioner in C.P.No.17 of 1998, was that there was no justification for Proclamation of Emergency for the reason that the conditions precedent under Article 232 did not exist, in that, at the relevant time, it could not be said that the security of Pakistan or any part thereof was threatened by war, external aggression or internal disturbances beyond the powers of a Provincial Government to control. Besides, it was consistent standpoint of the Government at the time of Proclamation of Emergency and thereafter, that after the conduct of nuclear tests by Pakistan on 28th of May, 1998 the threat of aggression by India against Azad Jammu and Kashmir had been averted, therefore, if at all, there was any threat of war or external aggression, that stood abated and neutralized after the conduct of nuclear tests by Pakistan.
40. In support of his contentions, the learned counsel referred to Lawless v. Ireland (No.3), dated Ist July, 1961, wherein an exceptional situation of crisis or emergency, which affects the whole population or constitutes a threat to the organised life of community of which the State is composed, has been depicted in the following words:-
858. "In the general context of Article 15 of the Convention, the natural and customary meaning of the words 'other public emergency threatening the life of the nation' is sufficiently clear; they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed. Having, thus, established the natural and customary meaning of this conception, the Court must determine whether the facts and circumstances which led the Irish Government to make their Proclamation of 5th July, 1957 come within this conception. The Court, after an examination, finds this to be the case; the existence at the time of a 'public emergency threatening the life of the nation' was reasonably deduced by the Irish Government from a combination of several factors, namely: in the first place, the existence in the territory of the Republic of Ireland of secret army engaged in unconstitutional activities and using violence to attain its purposes.; secondly, the fact that this army was also operating outside the territory of the State, thus, seriously jeopardising the relations of the Republic of Irelan4)with its neighbour; thirdly the steady and alarming increase in terrorist activities from the autumn of 1996 and throughout the first half on 1957."
859. He then referred to 'International Law Association Report of Sixty-Second Conference (Seoul, 1986)' 'Enforcement of Fundamental Rights' wherein some basic principles on Proclamation of Emergency, have been given, which read thus:-
860. "However the general agreement exists on the following basic principles: severity of cause (defined generally as threatening the life of the nation): good faith on the part of the imposing Government; proportionality (relating to geographic scope, duration and choice of measures strictly required by the exigencies of the situation); proclamation or notification; non-derogability of certain rights; respect for other international obligations and non-discrimination."
861. The learned counsel next referred to Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 677), wherein at page 721 of the report, it has been observed as follows:-
862. ??????????? "It has already been seen that the conditions culminating in the ? Proclamation of Martial Law on the 5th of July, 1977 , were so grave that the very existence of the country was threatened, 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
863. ? 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 made under the 1973 Constitution. No exception can, therefore, be taken to the validity of this provision."
864. ??????????? Reference was made to Al-Jehad Trust v. Federation of Pakistan (PLD
865. 1996 SC 324), wherein at page 429, paragraph 23, it was observed as thus:--
866. "Adverting to the above second peculiar feature that our country has Federal System of Government which is based on trichotomy of power, it may be observed that each organ of the State is required to function/operate within the bounds specified in the Constitution though one can say that the Judiciary is the weakest limb as it does not have the resources or power which the Legislature or the Executive enjoy but it has been assigned very important and delicate role to play, namely, to ensure that none of the organs or the Government functionaries acts in violation of any provision of the Constitution or of any other law and because of the above nature of the work entrusted to the Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent. I may retiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. At this junction, it may be stated that a written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context." n the same report, at page 538, it was observed as follows:-
867. "It is true that generally a Court of law is not authorised to alter the language of the Statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law-maker by supplying 'omissions' in order to avoid manifest injustice. It is a misconception, therefore, to consider that the reading of the words in the Constitution or Statute to give effect to the free intention of the law-maker amounts to re-writing or amending the Constitution or the Statutes. On the other hand, its purpose is to give effect to its true intent. "
868. He then referred to M.M.Mansur Ali v. Arodhendu Shekhar Chatterjee ;PLD 1969 SC 37), wherein at page 41 it was observed as under:-
869. "In the present case the question whether the plaintiff-respondents who are admittedly nationals and residents of Baharat are alien enemies or not depends on the answer to the question whether we are at war with India and whether India is an enemy country. This, however, is a delicate political question, which, as a matter of State policy lies in the domain of the Executive Government and the Courts need not answer it. One can take notice of the physical facts bearing on the point which are that soon after the attack by India on Pakistan on the 6th of September 1965, the President of Pakistan declared that we were at war with India and a State of Emergency was proclaimed. There has since been no revocation of that declaration but there is also the fact that hostilities came to an end by the announcement of the cease-fire declaration in the Security Council and later the warring parties were brought to the conference-table at Tashkent by the good offices of the Russian Government where once against a Declaration was made acknowledging the end of belligerency between Pakistan and Bharat and an announcement was made that efforts would be made to bring about a peaceful Settlement of all outstanding disputes. But whether normalization of relations between the two countries has, in fact, been effected or not, is a matter of which the Government is the best judge arid it alone can say as to how we stand against India in terms of belligerenpy i.e., whether we are at war with it conventionally or otherwise. In our view this is a purely political question, of which the answer must be supplied by the Government concerned."
870. In Halsbury's Laws of England, Third Edition, Volume 39 under the head 'Common Law and Convention', the following passage relevant to this point appears which may be usefully quoted:-
871. "At common law no state of war exists between this country and a foreign State until there has been a formal declaration of war by the Crown or hostilities have been commenced by the authority of the Crown. (a) Similarly a war may be terminated only by the authority of the Crown, and this is usually effected by a treaty of peace and announced to the nation by proclamation or Order in Council. (b) A certificate of the Secretary of State for Foreign Affairs to the effect that the Crown is still at war with a foreign State is conclusive evidence that the state of war is not at an end. (c) During the course of a war with a foreign State all commerce and intercourse between British Subjects resident in British territory and the subjects of that State, or with persons residing there, is prohibited except under licence. (d) Judicial notice will be taken of the existence of a state of war between this country and any other, when that is the fact, even after the termination of hostilities'.
872. The correct procedure therefore, for the Courts to follow, whenever a question of this nature crops up is to obtain the views of the Government on the question and to follow them. "
873. The learned counsel further referred to Niaz Ahmad Khan v. Province of Sindh (PLD 1977 Karachi 604), wherein it was observed at pages 623, 624 and 625, as under:-
874. "In view of a clear embargo placed by the language of clause (2) of Article 236, there is also no escape from the conclusion that the validity of the Proclamation of Emergency issued by the President on 21 April, 1977, cannot be called in question.
875. Even otherwise, it has been held that the nature of the enabling provision contained in Article 232 is such that the President is intended to be the sole Judge of the existence of the situation calling for issue c Proclamation of Emergency."
876. In Malik Ghulam Jilani v. Deputy Commissioner, Karachi and other PLD 1969 Kar. 253, in respect of similar provisions contained in Article 30 a the Constitution of 1962, I observed as follows:-
877. "To some indeterminate extent the power to wage war embraces the power to prepare for it and the further power to deal with the problem of adjustment after hostilities have ceased. In his Commentaries, Justin Story wrote as follows with specific reference to the question o preparation for war:-
878. 'It is important also to consider, that the surest means of avoiding was is to be prepared for it in peace ....How could a readiness for war u time of peace be safety prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation' The means of security can be only regulated by the means and the danger of attack ....It will be in vain to oppose Constitutional barriers to the impulse of self-preservation'. "
879. Justice Douglas in the case reported as 333 U. S. 138 has remarked:
880. "The war power of Congress under the Constitution does not necessarily end with the cessation of hostilities, whatever may be the consequences when war is officially terminated."
881. In this case the validity of Housing and Rent Resolution was challenged on the ground that it was passed despite the earlier termination of hostilities. Holding this enactment his Lordship went on to say:-
882. It is plain from the legislative history that congress was invoking its war power to cope up with the current conditions of which the war was a direct and immediate cause. Its judgment on that scope is entitled to respect granted like legislation enacted pursuant to police power."
883. In this connection I cannot help quoting a passage from the observations of Lord Macmillan:-
884. 'We have had good reason to realize the truth of Cicero' adage that amidst the clash of arms the laws are silent. The still, small voice of the law is quelled while men kill and destroy in defiance of its dictates. What we have to is to restore the reign of law, to reseat justice on her throne, to cause right once more to prevail over wrong. The process so re-establishing the rule of law once it has been shattered is slow and difficult, it is so much easier to destroy than to rebuild. But until the world once more becomes law-abiding, it cannot hope to regain peace and happiness."
885. "In the case of emergency created as a result of war, the basic fiber of the State is at peril and the power to suspend fundamental rights of the citizens within the country is conceded to in almost all the countries. How long the Proclamation of Emergency should continue and what restrictions should be placed on the fundamental rights of the citizens during the pendency of the emergency, are matters which must inevitably be left to the Executive, as has been done under the Constitution, because the Executive know best the requirements of the situation and the effect of the compulsive factors which operate during the period of great crisis. His Lordship Wright observed in the case of Liverside v. Anterson and another 1942 AC 206: "the safeguard of British liberty is in the good sense of the people and in the 'System of representative and responsible Government which has been evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary."
886. In the same connection, their Lordships of the Supreme Court in Abdul Baqi Baluch v. Government of Pakistan and others PLD 1968 SC 313 observed as follows:
887. "It is contended that the President, having chosen to declare in the proclamation that a grave emergency had arisen due to the fact that 'Pakistan is in imminent danger of being threatened by war' must be taken to have defined the emergency which was sought to be met. Hence, under clause (4) of Article 30 of the Constitution, the only power that the President had was to make and promulgate such Ordinances as were necessary to meet the emergency that gave rise to the issue of the proclamation'. There was no power in the President to provide for a different kind of emergency such as the preservation of the security of Pakistan or the public safety or the maintenance of public order."
888. "The argument of the present type urged before us was also presented before the Supreme Court of India in the case of Makhan Singh Tarsikka v. The State of Punjab AIR 1964 SC 381. It was urged in that case that emergency created on the Chinese Aggression may last long and in consequence the citizens would be precluded from enforcing their fundamental rights specified in the Presidential Order during the period that the Order was in operation. This argument was repelled as being essentially a political one.
889. In my opinion, therefore, the power granted by the Constitution to the President of Pakistan to issue Proclamation of Emergency or revoke is not open to judicial scrutiny by the superior Courts in Pakistan, in the exercise of powers under Article 98 of the Constitution, for the President alone is the sole Judge of the situation in either case."
890. Also referred Mir Abdul Baqi Baluch v. The Government of Pakistan etc. (PLD 1968 SC 313).
891. Reference was made to The State v. Dosso (PLD 1958 SC 533), to contend that fundamental rights are the salient features and basic characteristics of the Constitution. The relevant passage at pages 560 and 561 are as under:-
892. "One final reason for my being in a state of doubt upon this question may be added in brief. It is that the validity of writs issued prior to the 7th October, 1958, under the provisions of the Constitution of 1956 does not appear to be generally hit by anything contained in subsection (7) aforesaid, on the interpretation for which the learned Attorney-General has contended before us. Only those of such writs which happen to be still subject to legal revision upon the coming into force of the new regime are sought to be avoided on the basis of this interpretation, and this, not on any consideration whether they were rightly or wrongly granted at the time when they were issued in the eye of the law as then in force, but merely because they happen to be pending by virtue of having been appealed against. It is, in my view, more reasonable to infer, especially since the Order of the 10th October, 1958, does not appear, by expression, to have retrospective effect that as to matters which were concluded during the period which finally terminated on the 7th October, 1958, the intention of the Order is that the law in force during that period, at the relevant time, should be allowed to prevail. For, it remains further to be said with reference to a number of Fundamental Rights, enumerated in Part II of the Constitution of 1956 that they do not derive their entire validity from the fact of having been formulated in words and enacted in that Constitution. A number of these rights are essential human rights which inherently belong to every citizen of a country governed in a civilized mode, and speaking with great respect it seems to me that the view pressed before us by the learned Attorney-General involves a danger of denial of these elementary rights, at a' time when they were 'expressly assured by writing in the fundamental law of the country, merely because that writing is no longer of any force.
893. For these reasons I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Courts commenced by the convicted persons in the two cases here under consideration: I do not, therefore, consider that it is open to me to reverse the judgment of the High Court in these two cases and to recall the writs issued by them unless I am satisfied that the view of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable.
894. The provisions of the Frontier Crimes Regulation with reference to the trial of crimes commence with section 11 and, as has been indicated already, they consist in the main of directions enabling executive officers where they think ' it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any of several persons so accused should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898' to refer the question to a Council of Elders (otherwise known as a Jirga) and to require the Council to come to findings upon the questions arising. "
895. Reference was made to Greek Case '(1969) 12 Years Book of European Convention' Issue arising from Article 15, to contend that burden lies upon the respondent Government to show the conditions justifying the need for Emergency. Relevant passages Nos. 154, 160, 161 and 164 are at pages 73, 74 and 75, which are reproduced hereunder: -
896. "
154. The Commission considers that in the present case the burden lies upon the respondent Government to show that the conditions justifying measures of derogation under Article 15 have been and continue to be met, due regard being had to the margin of appreciation" which, according to the constant jurisprudence of the Commission, the Government has in judging the situation in Greece as from the moment it assumed power on 21 st April, 1967. "
897. "
160. The Commission further does not accept the suggestion of the respondent Government that the street demonstrations, strikes and work stoppages in the first months of 1967 attained the magnitude of a public emergency. Though the street demonstrations, as anywhere, created anxiety for persons and property in Athens and Salonica, 'the record -does not show the police forces to have been at or even near the limit of their capacity to cope with demonstrations and disorder, and they acted without need of assistance from the armed services. In particular, they cleared the University buildings in Salonica of its illegal occupants 'in a few minutes' on 11th April, 1967. The order prohibiting the 'Marathon March', to be held on the 16th April, 1967, and the obedience to it, is further indication that the Government was in effective control of the situation. "
898. "
161. The picture of strikes and work stoppages does not differ markedly from that in many other countries in Europe over a similar period; indeed, as regards the length of strikes and stoppages it is more favourable than in some. There is certainly no indication that there was any serious disorganisation, let alone one involving the whole nation, of vital supplies, utilities or services, as a result of strikes. "
899. "164. The concrete question before the Commission is whether, on 21st April, 1967, there was a threat, imminent in that it would be realised before or soon after the May elections, of such political instability and disorder that the organised life of the community could not be carried on. The Commission gives a negative answer to this question for two reasons:-
(i) If it said that the possibility of the formation of a 'Popular Front' Government, with its probable consequence of a Communist take-over of Government, constituted in itself a public emergency threatening the life of the nation, the Commission does not consider that it has been shown, from the state of the parties or the political situation generally, that the formation of a 'Popular Front' Government after the May elections was certain or even likely;
(ii) on the other hand, there was no indication- on 21st April, 1967, that, either before or after the May elections public disorder would be fomented and organised to a point beyond the powers of the police to control: on the contrary, the speed with which a large number of Communists and their allies were themselves 'neutralised' on 21st April, 1967, suggests that, for all their supposed plans, they were incapable of any organised action in a crises."
900. Reference was also made to 'General Comments under Article 40, paragraph 4 of the International Covenant on Civil and Political Rights' wherein under General Comment 5(13) (Article 4), it was observed:-
901. "1. Article 4 of the Covenant has posed a number of problems for the Committee when considering reports from some States parties. When a public emergency which threatens the life of a nation arises and it is officially proclaimed, a State party may derogate from a ? number of rights to the extent strictly required by the situation. The State party, however, may not derogate from certain specific rights and may not take discriminatory measures on a number of grounds. The State party is also under an obligation to inform the other States parties immediately, through the Secretary-General, of the derogations it has made including the reasons, therefore, and the date on which the derogations are terminated.
2. States parties have generally indicated the mechanism provided in their legal systems for the declaration of a state of emergency and the applicable provisions of the law governing derogations. However, in the case of a few States which had apparently derogated from Covenant rights, it was unclear not only whether a state of emergency had been officially declared but also whether rights from which the Covenant allows no derogation had in fact not been derogated from and further whether the other States parties had been informed of the derogations and of the reasons for the derogations.
3. The Committee holds the view that measures taken under Article 4 are of an exceptional and temporary nature and may only last as long as the life of the national concerned is threatened and that, in times of emergency, the protection of human rights becomes all the more important, particularly those rights from which no derogations can be made. The Committee also considers that it is equally important for States parties, in times of public emergency, to inform the other States parties of the nature and extent of the derogations they have made and of the reasons, therefor and, further, to fulfil their reporting obligations under Article 40 of the Covenant by indicating the nature and extent of each right derogated from together with the relevant documentation."
902. The learned counsel also referred to 'Republic of Ireland v. The United Kingdom'.. before the European Court of Human Rights (Series A No.25, 18th January, 1978). wherein it was observed as follows:-
903. "The British Government faced with serious acts of terrorism perpetrated by members of the Irish Republican Army (IRA) and Loyalist groups in Northern Ireland, introduced special powers of arrest and detention without trial, which were widely used, chiefly against the I.R.A. Notices of derogation under Article 15(1) were lodged with the Secretary-General of the Council of Europe in view of the 'public emergency threatening the life of the nation'. The Government of the Republic of Ireland brought an application before the Commission alleging, inter alia, (i) that the extra-judicial detention infringed Article 5 (right to liberty) and was not saved by Article 15; (ii) that various interrogation practices--in particular the so-called five techniques, which included wall-standing, hooding and deprivation of sleep and food and other practices to which suspects were subjected amounted to torture and inhuman or degrading treatment contrary to Article 3; and (iii) that the use of the social powers primarily against I.R.A. members constituted discrimination in violation of Article 14. The Commission unanimously found that the five techniques did constitute a practice of torture and that other practices amounted to inhuman and degrading treatment, but that there was no infringement of Article 14, and the derogations from Article 5 were justified under Article 15. The applicant Government referred the case to the Court (although the offending practices had been discontinued and the respondent Government did not contest the allegations or the findings in connection with the five techniques), renewing its original submissions and asking the Court in addition to address a consequential order to the British Government requiring it to institute criminal and disciplinary proceedings against the particular persons responsible for the breaches of Article 3. The case was heard by the plenary Court. Held:
(I) The British Government's attitude in failing to accord the Commission full assistance as required by Article 28(a), was regretted."
904. Article 4 of the International Covenant on Civil and Political Rights, was also referred, which reads, thus:-
905. "I. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin."
906. Articles 15 and 17 of European Convention on Human Rights and Fundamental Freedoms, were also relied upon, which are as under:-
907. "Article 15:
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
908. "Article 17:
909. Nothing in this Convention may be interpreted as implying for any State group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a great extent than is provided in the Convention. "
910. Article 27 (Suspension of Guarantees), of the American Convention on Human Rights was also referred, which reads, thus:-
911. "L . In time of war, public danger, or other emergency that threatens the independence or security of ` a State Party, it may take measures derogating from its obligations under the present convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, colour, sex, language, religion or social origin.
2. The foregoing provision does not auhorize any suspension of the following Articles: Article 3 (Right to juridical personality), Article 4 (Right to life), Article 5 (Right to humane treatment), Article, 6 (Freedom from slavery), Article 9 (Freedom from ex post, facto laws). Article 12 (Freedom of conscience and religion), Article 17 (Rights of the family), Article 18 (Right to a name), Article 19 (Rights of the child), Article 20 (Right to nationality), and Article 23 (Right to participate in Government), or of the judicial guarantees essential for the protection of such rights.
3. Any State Patty availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension and the date set for, the termination of such suspension."
912. Article 51 of United Nations Charter, was relied upon, which is in the following terms:-
913. "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. "
914. The Constitution of South Africa was referred to wherein in the 'Bill of Rights' under the heading 'States of Emergency' detailed circumstances under which Emergency can be declared: its purpose and extent of its length of time to which it can be extended, have been laid down. Section 37, which lays down 'States of Emergency', is reproduced in full for facility of reference:-
915. "37.--(1) A state of Emergency may be declared only in terms of an Act of Parliament and only when:-
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster, or other public emergency; and
(b) the declaration is necessary to restore peace and order
(2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of that declaration, may be effective only-
(a) prospectively from the date of the declaration; and
(b) for no more than 21 days from the date of the declaration, unless the National Assembly resolves to extend the declaration. The National Assembly may extend a declaration of a state of emergency for no more than three months at a time. The first extension of the state of emergency must be by a resolution supported by a majority of the Members of the National Assembly. Any subsequent extension must be by a resolution supported by at least 60 per cent. of the Members of the Assembly. A resolution in terms of this paragraph may be adopted only following a public debate in the Assembly.
(3) Any competent Court may decide on the validity of--
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
(4) Any legislation enacted in consequence of a declared state of Emergency may derogate from the Bill of Rights only to the extent that-- ??? ..
(a) the derogation is strictly required by the emergency; and
(b) the legislation--
(i) is consistent with the Republic's obligations under international law applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as reasonably possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise-
(a) indemnifying the state, or any person, in respect of any unlawful act;
(b) any derogation from this section; or
(c) any derogation from a section mentioned in column I of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of that table.
TABLE OF NON-DEROGABLE RIGHTS
916. 1 ????????????????????????????????? 2 ????????????????????????????????????????????????????????????????????????????????????????????? 3
917. Section ????? ????? ? Section title ????? ?????? ???????????????????????????????????????????????????? Extent to which the right number ???????????? ????????? ????????????????????????????????????????????????????????????????????????? is protected
918. 9 ????????? ??????????????? Equality ??????????????????????????????????????????????????????????????????????????????? With respect to unfair
919. ??????????????????????????????????????????????????????????????????????????????????????????????? discrimination soley on the grounds
920. ??????????????????????? ??????????????????????????????????????????????????????????????????????? of race, colour, ethnic or social origin, sex, religion or language
921. 10 ??????? ??????? Human Dignity ????? ????????????????????????????????????????????? Entirely
922. 11 ??????????????????? Life ????????????????????????????????????????????????????????????????? Entirely
923. 12 ??????? Freedom and ??????????????????????????????????????????????????????????????? With respect to subsections (1)
924. ??????????? security of ???????????????????????????????????????????????????????????????????????????????? (d) and (e) and (2) (c).
925. ??????????? the person.
926. 13 ??????? Slavery servitude ????????????????????????????????????????????????????????? With respect to slavery and
927. ??????????? and forced labour ???????? ??????????????????????????????????????????????? servitude
928. 28 ??????? Children ?????????????????????????????????????????????????????????????????????????????????? With respect to--
929. ??????????????????????????????????????????????????????????????????????????????????????????????? --subsection (1)(d) and (e);
930. ??????????????????????????????????????????????????????????????????????????????????? --the rights in subparagraphs (i)
931. ??????????????????????????????????????????????????????????????????????????????????? and (ii) of subsection (1)(g);
932. ??????????????????????????????????????????????????????????????????????????????????? and
933. ??????????????????????????????????????????????????????????????????????????????????? --subsection (1)(i) in respect of
934. ???????????????????????
935. 35 ??????? Arrested, ????????? ?????????????????????????????????????????????? With respect to--
936. ??????????? detained and ???????????????????????????????????????????????????? --subsections (1)(a),(b) and (c)
937. ??????????? accused persons ?????????????????????????????????????????????? and (2)(d);
938. ??????????????????????????????????????????????????????????????????????? The Rights in paragraphs (a) to (o)
939. ??????????????????????????????????????????????????????????????????????????????????? of subsection (3), excluding
940. ??????????????????????????????????????????????????????????????????????????????????? paragraph (d).
941. ??????????????????????????????????????????????????????????????????????????????????? --Subsection (4); and
942. ??????????????????????????????????????????????????????????????????????????????????? --Subsection (5) with respect to
943. ??????????????????????????????????????????????????????????????????????? the exclusion of evidence if the
944. ??????????????????????????????????????????????????????????????????????????????????? admission of that evidence would
945. ??????????????????????????????????????????????????????????????????????????????????? render the trial unfair.
(6) Whenever anyone is detained without trial in consequence of 'a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:
(a) An adult family member or friend of the detainee must be contacted as soon as reasonably possible, and told that the person has been detained.
(b) A notice must be published in the National Government Gazette within five days of the person being detained, stating the detainee's name and place of detention and referring to the emergency measure in terms of which that person has been detained.
(c) The detainee must be allowed to choose, and be visited at any reasonable time by, a medical practitioner.
(d) The detainee must be allowed to choose and be visited at any reasonable time by a legal representative. '
(e) A Court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained and the Court must release the detainee unless it is necessary to continue the detention to restore peace and order.
946. (fl A detainee who is not released in terms of paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a Court for a further review of the detention any time more than 10 days after the previous review, and in either case, the Court must release the detainee unless it is necessary to continue the detention to restore peace and order.
(g) The detainee must be allowed to appear in person before any Court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.
(h) The State must present written reasons to the Court to justify the continued detention of the detainee, acid must give a copy of those reasons to the detainee at least two days before the Court reviews the detention.
(7) If a Court releases a detainee that person may not be detained again on the same grounds unless the State first shows a Court good cause for re-detaining that person.
(8) Subsections (6) and (7) do not apply to persons who are not citizens of the Republic arid who are detained in consequence of an international armed conflict. Instead, the State must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of those persons."
947. Learned counsel also referred to General Assembly's Resolution on the Definition of Aggression, 1974, according to which, under Article 3, the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2 of the Resolution, qualify as an act of aggression:-
948. "(a) The invasion or attack by the Armed Forces of a State of the Territory of another State, or any military occupation, however, temporary, resulting from such invasion or attack, or an annexation by the use of force of the territory of another State or part thereof;
(b) Bombardment by the Armed Forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State."
41. Mr. Hamid Khan submitted that a lot of progress in the arena of jurisprudence has been made during the past few years and that this Court has played a prominent role for enforcement of Fundamental Rights. He referred to some important cases under Article 18413) of the Constitution decided by this Court viz. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Mrs. Benazir Bhutto v. Federation of Pakistan (PLD 1989 SC 66), Darshan Masih alias Rehmatay v. The State (PLD 1990 SC 513), Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) and Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), to contend that the impugned action was an extremely retrogressive step putting the clock back. He contended that sense of deprivation is always greater when some rights are enjoyed for a longer period. He pleaded that imposition of Emergency and suspension of Fundamental Rights had eroded the authority of the judiciary and that Fundamental Rights being basic feature of the Constitution could not be abridged or suspended.
949. 42 1 have given careful consideration to the thought provoking argument advanced by Mr. Hamid Khan and also minutely gone through the case-law from Pakistani and Foreign jurisdiction as well as International Conventions cited by him. Mr. Hamid Khan was perfectly right in contending that the people have stood by the Government in the matter of nuclear blasts and demonstrated their solidarity with the Government on this issue by offering to withstand sacrifices in consequence thereof. Mr. Hamid Khan was also right in contending that the power vesting in the President under Article 232(1) of the Constitution is open to scrutiny and judicial review by the superior Courts to the extent indicated in their judgments, inasmuch as, the President is controlled by the Constitution and cannot travel beyond the appropriate sphere of duty assigned to him under the Constitution. He was also right in contending that the powers so vested in the President have the potential to be abused and mere adoption of resolution by the Parliament regarding Proclamation of Emergency and suspension of Fundamental Rights,' would not have the effect of validating the inherent illegality and unconstitutionality of the impugned action, if so found.
43. Mr. Hamid Khan was also right to say that the modern trends in the Constitutions of the world, indicate progressive approach regarding imposition of Emergency. This Court has also adopted liberal and progressive interpretation in various Constitutional cases referred to in the illuminative judgment of the Hon'ble Chief Justice. I would emphasise the following observations of the Hon'ble Chief Justice:
950. "52. In my view, the approach of this Court to deal with the question at issue should be in line with the above dynamic and progressive approach, if we were to march with the jurisprudential development in the world reflected by the above case-law, treatises and the conventions. This will also facilitate in strengthening the democratic norms and institutions. "
44. It may be further emphasised that the measures taken under the Proclamation of Emergency are of an exceptional and temporary nature and the protection of Fundamental Rights guaranteed under the Constitution becomes all the more important, particularly, those rights, from which no derogation can be made. When the Proclamation of Emergency is in force under Article 232, the' State may make any law or take any executive action, which it would, but for the provisions under Articles 15, 16, 17, 18, 19 and 24 of the Constitution, be competent to make or take, to the extent strictly required by the exigencies of the situation. Clearly, the Superior Courts in appropriate cases and in appropriate proceedings, are competent to decide on the validity of any legislation enacted or any executive action taken in consequence of a Proclamation of Emergency. Needless to observe that in recent times the superior Courts have zealously preserved and enlarged the scope of Fundamental Rights while interpreting Constitutional provisions. I am, however, not inclined to agree with him. after perusing the material produced by the Government, that conditions precedent under Article 232(1) for issuance of Proclamation of Emergency, did not exist. My reasons for arriving at this conclusion have been discussed in the preceding paragraphs which it is not necessary to repeat.
45. Mr. Muhammad Yousaf Leghari, Vice-Chairman, Pakistan Bar Council, appearing as amicus curiae, opposed the Proclamation of Emergency and suspension of Fundamental Rights. He emphatically argued that the imposition of Emergency had taken away the federal character of the Constitution, undermined provincial autonomy and deprived citizens of their Fundamental Rights. He submitted that at the relevant time pre-conditions did not exist necessitating the Proclamation of Emergency and that it. can only be imposed when there is no other alternative left, which was not the case here.
46. The learned counsel further argued that Article 232 of the Constitution could be invoked only in a 'grave' emergency in which the security of Pakistan is threatened by 'external aggression' or by 'internal disturbances'; whereas the Government has failed to produce any material to show that the security of Pakistan was threatened by external aggression or internal disturbance to justify the Proclamation of Emergency.
47. In support of his arguments he placed on record a copy of the Resolution passed by the Pakistan Bar Council in its 115th Meeting held on 27th June, 1998, in which the Council has condemned the imposition of Emergency and called for its immediate withdrawal.
48. Mr. Abid Hasan Minto, learned Advocate Supreme Court President, Supreme Court Bar Association, appearing as amicus curiae, vehemently argued that no material justifying the Proclamation of Emergency was shown to the Parliament when the Resolution for approval of the Proclamation of Emergency was moved by the Government and very little debate had taken place in this regard. Besides, all the political parties including even those which are coalition partners of the Pakistan Muslim League (Nawaz Group), had opposed the imposition of Emergency and only those Senators and Parliamentarians favoured the Resolution who apprehended that they might have been unseated if they voted otherwise, due to the 14th Amendment in the Constitution and that outside the Parliament the Proclamation of Emergency was universally condemned as wholly unwarranted.
49. The learned counsel further argued that freedom of movement under Article 15, freedom of assembly under Article 16, freedom of association under Article 17, freedom of trade, business and profession under Article 18, freedom of speech and the Press under Article 19 and protection of property rights under Article 23 of the Constitution, having stood suspended on declaration of Emergency, the Parliament might make laws inconsistent with them under Article 233(1) of the Constitution. Suspension of enforcement of Fundamental Rights under Article 233(2) of he Constitution by the Executive, has deprived the whole nation of its basic rights on May 28, 1998 and even the amended notification of 13th July, 1998 kept most of civil liberties suspended. He argued that a provision restricting Fundamental Rights, Provincial autonomy and jurisdiction of Courts ought nut to be interpreted liberally so as to widen its scope.
50. Mr. Abid Hasan Minto emphasised that Article 232 of the Constitution did not contemplate imposition of Emergency in the event of 'threat of aggression' but instead, as a bare reading of the Article 232 would show, the first prerequisite for an Emergency under this Article is the existence of 'actual war' or external aggression' or 'internal disturbance' beyond the power of a Provincial Government to control and that such war, external aggression or internal disturbance must threaten the 'security of Pakistan' or any part of it. He argued that there is no mention of 'mere threat' in the Constitution. '
951. 5 1. He next argued that in 1972 Interim Constitution it was provided for emergency to meet a 'threat of aggression' but this ground was omitted from the Emergency Provisions of the 1973 Constitution and due to such deliberate omission 'mere threat' remained no longer available for clamping emergency rule.
52. He contended that as the need to impose Emergency was not felt when India had tested the nuclear devices on 11th and 13th May, 1998 but it was enforced at a time when Pakistan had met the threats of Indian attack and the Prime Minister had stated on the Floor of the House to corroborate the same, therefore, imposition of Emergency is a 'fraud' played on the Constitution.
53. Mr. Abid Hasan Minto further argued that 'satisfaction'' of the President, which is subjective and not objective, was necessary before he proclaimed the Emergency, therefore, this Court has, now, to see if the material provided to the President sufficiently satisfied him for issuance of Proclamation of Emergency.
952. He next argued that all Proclamation and orders must be placed before the Parliament and that the Court can examine the validity of a Proclamation immediately because approval of a Proclamation or an order does not cure it of its inherent flaw, in that despite Parliamentary approval, it remains a Presidential Proclamation or order and does not become an act of the Parliament and an irresponsible Executive may play havoc with the polity within 30 days, therefore, the Court cannot remain a silent spectator
54. He further contended that in the absence of any material produced by the Government, the onus to prove that Emergency was lawfully imposed on 28th May, 1998, lay on the respondents and not on the petitioners
55. Mr. Abid Hasan Minto strongly opposed the Proclamation of Emergency on the ground that prerequisites set by Article 232 of the Constitution did not exist at the relevant time. His precise submission was that Pakistan was neither facing the state of physical war or external aggression at that time nor the internal disturbance was beyond the power of the Provincial Government to control, therefore, there was no justification for imposition of Emergency. He, on the basis of his above arguments, submitted that the petitions are maintainable under Article 184(3) of the Constitution and that this Court should take judicial notice of the departure of the Government from the Constitution and construe Article 232 of the Constitution accordingly.
56. In support of his arguments the learned counsel referred to a statement made by the Prime Minister on the Floor of the House, published in daily 'Dawn', Karachi dated 6-6-1998, in which he stated thus:-
953. "The fate of Pakistan is now in the hands of its people, the Prime Minister said, adding the future of every Pakistani 'is now secure' and the country was now making all its decisions itself."
954. "He said nuclear capability was achieved after continuous hard work of thousands of scientists and engineers. He also praised the role of the armed forces in protecting the nuclear programme. The credit, lie pointed out, went to the whole nation for conducting the nuclear tests. He appreciated the role of intellectuals, religious scholars and journalists for creating awareness among the people on the issue and keeping them united."
955. He then referred to a statement made by Information Minister Mr. Mushahid Hussain on the Floor of the House, published in daily "Dawn Karachi" dated 9-6-1998, in which answering apprehensions of the Opposition, he stated:--
956. .... ...the Proclamation of Emergency had nothing to do with domestic politics and instead, had been imposed purely for economic reason."
957. "Mr. Mushahid said the "bold and courageous decision of Mr. Nawaz Sharif has brought the country on a par with India."
958. Mr. Abid Hasan Minto referred to 1956 and 1962 Constitutions to contend that the same provided for imposition of Emergency if there was an 'imminent danger of war' as also in the event of an economic crises whereas 1972 Interim Constitution provided for imposition of Emergency to meet a 'threat of aggression' but this ground was omitted from the emergency provisions of 1973 Constitution. Relevant Articles of the above Constitutions are reproduced below respectively for reference, which read thus:-
959. " 191.--(1) ? If the President is satisfied that a grave emergency exists in which the security or economic life of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency in this Article referred to as a Proclamation.
(2) While a Proclamation is in operation notwithstanding anything in the Constitution--
(a) Parliament shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal or the Concurrent List;
(b) the executive authority of the Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority of the Province is to be exercised; and
(c) the President may by Order assume to himself to direct the Governor of a Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by anybody or authority in the Province other than the Provincial Legislature, and make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending, in whole or in part, the operation of any provisions of the Constitution relating to anybody or authority in the Province:
960. Provided that nothing in sub-clause (c) shall authorize the President to assume to himself, or direct the Governor of the Province to assume on his behalf, any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part of the operation of any provisions of the Constitution relating .to High Courts.
(3) The power of Parliament to make laws for a Province with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties, upon the Federation, of officers and authorities of the Federation, as respects that matter.
(4) Nothing in this Article shall restrict the power of a Provincial Legislature to make any law which under the Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of a Federal law, which Parliament has under this Article power to make, the Federal law, where passed before or after the Provincial law, shall prevail and the Provincial law, shall, to the extent of the repugnancy, but so long only as the Federal law continues to have effect, be void.
(5) A law made by Parliament which Parliament would not but for the issue of a Proclamation have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.'
(6) A Proclamation shall be-laid before the National Assembly as soon as conditions made it practicable for the President to summon that Assembly, and if approved by the Assembly, shall remain in force until it is revoked, or if disapproved, shall cease to operate from the date of disapproval.
(7) A Proclamation declaring that the security of Pakistan or any part thereof is threatened by war or external aggression may be made before the actual occurrence of war or any such aggression if the President is satisfied that there is imminent danger thereof.
961. "30.--(1) If the President is satisfied that a grave emergency exists---
(a) in which Pakistan, or any part of Pakistan, is (or is in imminent danger of being) threatened by war or external aggression; or
(b) in which the security or economic life of Pakistan is threatened by internal disturbances beyond the power of a Provincial Government to control, the President may issue a Proclamation of Emergency.
(c) A Proclamation of Emergency shall, as soon as, is practicable, be laid before the National Assembly.
(3) The President shall, when he is satisfied that the grounds on which he issued a Proclamation of Emergency have ceased to exist, revoke the Proclamation.
(4) If, at a time when a Proclamation of Emergency is in force (whether or not the National Assembly stands dissolved or is in session at that time) the President is satisfied that immediate legislation is necessary to assist in meeting the emergency that gave rise to the issue of Proclamation, he may, subject to this Article, make and promulgate such Ordinances as appear to him to be necessary to meet the emergency and any such Ordinance shall, subject to this Article, have the same force of law as an Act of the Central Legislature.
(5) An Ordinance made and promulgated under this Article shall, as soon as, is practicable, be laid before the National Assembly.
(6) The National Assembly shall have no power to disapprove of the Ordinance but if, before the Ordinance ceases to have effect, the National Assembly, by resolution, approves of the Ordinance, the Ordinance shall be deemed to have become an Act of the Central Legislature.
(7) An Ordinance made under this Article shall, unless it has been sooner approved by the National Assembly or repealed by the President, cease to have effect, and shall be deeme4 to have repealed, at the time when the Proclamation of Emergency by virtue of which it was made is revoked.
(8) The power of the President to make laws by the making and promulgation of Ordinances under this Article extends only to making of laws within the legislative competence of the Central Legislature.
(9) While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move a High Court for the enforcement of such of the fundamental rights conferred by Chapter 1 of Part II of this Constitution as may be specified in the Order, and all proceedings pending in Courts for the enforcement of the rights so specified shall remain suspended for the period during which the Proclamation is in force."
962. 139.--(1) Notwithstanding anything in the last two preceding Articles, the Federal Legislature shall, if the President has declared by Proclamation (in this Constitution referred to as a "Proclamation of Emergency") that a grave emergency exists whereby the security or economic life of Pakistan or any part thereof is threatened by war or internal disturbance or circumstances arising out of any mass movement of population from or into Pakistan, have power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List, or to make laws, whether or not for a Province or any part thereof, with respect to any matter not enumerated in any of the Lists is that Fourth Schedule or to make laws, notwithstanding anything in any other provisions of this Constitution, relating to the custody, management and disposal of the property of any person concerned in any mass movement as aforesaid:
963. Provided that no Bill or amendment for the purposes aforesaid shall be introduced or moved without the previous sanction of the President, and the President shall not give his sanction unless it appears to him that the provision proposed to be made is a proper provision in view of the nature of the emergency.
(2) Nothing contained in Articles 12, 13, 14, 15, 16 and 20 shall, while a Proclamation of Emergency is in force, restrict the power of the State as defined in Article 6 to make any law or to take any executive action which it would, but for the provisions contained in the said Articles, be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked.
(3) While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the fundamental rights conferred by Chapter 1 of Part II as may be specified in the Order, and any proceedings in any Court which is for the enforcement, or involves the determination of any question as to- the infringement of any of the rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any part of Pakistan.
(4) Nothing in this Article shall restrict the power of a Provincial Legislature to make any law which under this Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature has under this Article power to make, the Federal law, whether passed before or after the Provincial law, shall prevail, and the Provincial law shall, to the extent of the repugnancy, but so long only. as the Federal law continues to have effect, be void.
(5) A Proclamation of Emergency may be revoked by a subsequent Proclamation by the President,
(6) A law made by the Federal Legislature which that Legislature would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the Incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.
(7) A Proclamation of Emergency declaring that the security or economic life of Pakistan or any part there is threatened by war or internal disturbance or circumstances arising out of any mass movement of population from or into Pakistan may be made before the actual occurrence of war or disturbance or circumstances if the President is satisfied that there is imminent danger thereof.
(8) The Proclamation of Emergency issued on the twenty-third day of November, 1971, shall be deemed to be a Proclamation of Emergency issued under this Article, and any law, rule or order made or purported to have been made in pursuance of that Proclamation shall be deemed to have been validly made.
(9) A Proclamation of Emergency issued or deemed to have been issued under this Article shall not be called in question in any Court. "
964. He also referred to Articles 102 and 126 of the Government of India Act, 1935, which relate to making of laws during emergency. The same are reproduced hereunder for reference:-
965. "102.--(1) Notwithstanding anything in the preceding sections of this chapter, the Federal Legislature shall, if the Governor-General has in his discretion declared by Proclamation (in this Act referred to as a 'Proclamation of Emergency') that a grave emergency exists whereby the security of India is threatened whether by war or internal disturbance, have power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List:
966. Provided that no Bill or amendment for the purposes aforesaid shall be introduced or moved without the previous sanction of the Governor General in his discretion, unless it appears to him that the provision proposed to be made is a proper provision in view of the nature of the emergency.
(2) Nothing in this section shall restrict the power of a Provincial Legislature to make any law which under this Act it has power to make but if any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature has under this, section power to make, the Federal law, whether passed before or after the Provincial law, shall prevail, and the Provincial law shall to the extent of the repugnancy, but so along only as the Federal law continues to have effect be void.
(3) A Proclamation of Emergency---
(a) may be revoked by a subsequent. Proclamation;
(b) shall be communicated forthwith to the Secretary of State and shall be laid by him before each House of Parliament; and
967. " 126.--(I) The executive authority of every Province shall be so exercised as not to impede or prejudice the exercise of the executive authority of the Federation, and the executive authority of the Federation shall extend to the giving of such directions to a Province as may appear to the Federal Government to be necessary for that purpose.
(2) The executive authority of the Federation shall also extend to the giving of directions to a Province as to the carrying into execution therein of any Act of the Federal Legislature which relates to a matter specified in Part II of the Concurrent Legislative List and authorises the giving of such directions:
968. Provided that a Bill or amendment which proposes to authorise the giving of any such directions as aforesaid shall not be introduced into o moved in either Chamber of the Federal Legislature without the previous sanction of the Governor-General in his discretion.
(3) The executive authority of the Federation shall also extend to the giving of directions to a Province as to the construction and maintenance of means of communication declared in the direction to b of military importance: .
969. Provided that nothing in this subsection shall be taken as restricting the power of the Federation to construct and maintain means o communication part of its functions with respect to naval, military any air force works.
(4) If it appears to the Governor-General that in any Province effect ha not been given to any directions given under this section, the Governor General, acting in his discretion, may issue as orders to the Governor o that Province either the directions previously given or those direction modified in such manner as the Governor-General thinks proper.
(5) Without prejudice to his powers under the last preceding subsection the Governor-General, acting in his discretion, may at any time issue orders to the Governor of a Province as to the manner in which the executive authority thereof is to be exercised for the purpose o preventing any grave menage to the peace or tranquillity of India or o any part thereof."
970. Mr. Abid Hasan Minto next referred to 'Constitutional Interpretation by Craig R. Tulat, Cases on American Constitution, 5th Edition, 1992, where in Chapter 4, entitled "The Impact of War and Emergencies on Legislative any Executive Power", it was observed thus:-
971. "The Critical test for a Constitutional democracy and limited Government is how it behaves in wartime and emergencies It has often been argued that in war time and period of domestic travail constitutional rule gives way to more expeditious governance. There I an old legal maxim, Inter arma silent leges - ' In times of war, the law are silent'. The Court itself has never accepted it. Indeed, with respect to the need for observance of the Constitution, as Justice Davis put I speaking for the Court in Ex parte Milligan (P.330), 'No doctrine involving more pernicious consequences, was ever invented by the w of man than that any of its provisions can be suspended during any c he great exigencies of Government'. Rather as Chief Justice Hughes explained in Home Building & Loan Ass'n v. Blaisdell (p.336):
972. "Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency, and they are not altered by emergency. What power was, thus, granted and what limitations were, thus, imposed are questions which have always been, and always will be, the subject of close examination under our Constitutional system."
973. At page 328 of the said book, it has been observed as under:-
974. "The decisions which follow are representative of the pattern that generally characterizes the vitality of the Court as Constitutional check on the exercise of war and emergency powers; that it to say, it is almost no check at all. During hostilities, the Court invariably approves whatever use is made of the war powers. Constitutional objections to war time legislative and executive measures appear to be vindicated only after the shooting has stopped and even then constitute the exception rather than the rule. If the power to wage war evokes 'power to wage war successfully', the Justices are poorly placed, both by information and training, to question the judgment of the President and military authorities as to what measures are essential to a successful prosecution of the war."
975. At page 330 of the said book, in Milligan's case Mr. Justice Davis delivered the opinion of the Court, wherein at page 331 it was observed regarding detention thus:-
976. "The controlling question in the case is this:--Upon facts stated in Milligan's petition, and the exhibits filed, had the military commission mentioned in it jurisdiction, legally, to try and sentence him? Milligan, not a resident of one of the rebellious states, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service, is, while at his home, arrested by the military power of the United States, imprisoned, and, on certain criminal charges preferred against him, tried, convicted, and sentenced to be hanged by a Military Commission, organized under the direction of the military commander of the military district of Indiana. Had this Tribunal the legal power and authority to try and punish this man?
977. "No graver question was ever considered by this Court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law ...."
978. ? " ? By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings."
979. "Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principle of Constitutional liberty would be in peril, unless established by irrpealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that of any of its provisions can be suspended during any of the great exigencies of Government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the Government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority."
980. Every trial involves the exercise of judicial power; and from what source did the Military Commission that tried him derive their authority? Certainly no part of the judicial power of the country was conferred on them; because the Constitution expressly vests it ' in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish', and it is not pretended that the Commission was a Court ordained and established by Congress. They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is 'no unwritten criminal code to which resort can be had as a source of jurisdiction' "
981. But it is said that the jurisdiction is complete under the 'laws and usages of war'.
982. This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew---the history of the world told them---the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous for freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can be President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus.
983. It is essential to the safety of every Government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good Government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the peril to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the Government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men ,who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established Court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.
984. It will be borne in mind that this is not a question of the power to ? proclaim martial law, when war exists in a community and the Courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on States in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal States should be placed within the limits of certain military district and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to established martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually. closes the Courts and deposes the civil administration. "
985. At page 342 of the said book, in the case of Woods v. Cloyd W.Miller Co., Mr.Justice Douglas delivered the opinion of the Court in the following words:-
986. ??????????? .... ??????? The District Court was of the view that the authority of Congress to regulate rents by virtue of the war power ended with the Presidential Proclamation terminating hostilities on December 31, 1946, since that proclamation inaugurated 'peace-in-fact' though it did not mark termination of the war. It also concluded that even if the war power continues, Congress did not act under it because it did not say so, and only if Congress says so, or enacts provisions so implying, can it be held that Congress intended to exercise such power. That Congress did not so intend, said the District Court, follows from the provision that the Housing Expediter can end controls in any area without regard to the official termination of the war, and from the fact that the preceding Federal rent control laws (Which were concededly exercises of the war power) were neither amended nor extended. The District Court expressed the further view that rent control is not within the war power because 'the emergency created by housing shortage came into existence long before the war'. It held that the Act 'lacks in uniformity of application and distinctly constitutes a delegation of legislative power not within the grant of Congress' because of the authorization to the Housing Expediter to lift controls in any area before the Act's expiration. It also held that the Act in effect provides 'low rentals for certain groups without taking the property or compensating the owner in any way' . " ?????? . . . . . . .
987. We conclude, in the first place, that the war power sustains this legislation. The Court said in Hamilton v. Kentucky Distilleries and Warehouse Co., 251 U.S. 146, 161, 40 S. Ct.106, 110, that the war power includes the power 'to remedy the evils which have arisen from its rise and progress' and continues for the duration of that emergency. Whatever may be the consequences when war is officially terminated, the war power does not necessarily end with the cessation of hostilities. We recently held that it is adequate to support the preservation of rights created by wartime legislation, Fleming v. Mohawk Wrecking and Lumber Col., 331 U. S. 111,
67. S.Ct.1129. But it has a broader sweep. In Hamilton v. Kentucky Distilleries and Warehouse Co. (supra), and Rupport v. Caffey. 251 U.S. 264, 40 S.Ct.141, prohibition laws which were enacted after the Armistice in World War I were sustained as exercises of the war power because they conserved manpower and increased efficiency of production in the critical days during the period of demobilization, and helped to husband the supply of grains and cereals depleted by the war effort.
988. The Constitutional validity of the present legislation follows a fortiori from those cases. The legislative history of the present Act makes abundantly clear that there was not yet been eliminated the deficit in housing which in considerable measure was caused by the heavy demobilization of veterans and by the cessation or reduction in residential construction during the period of hostilities due to the allocation of building materials to military projects. Since the war effort contributed heavily to that deficit, Congress has the power even after the cessation of hostilities to act to control the forces that a short supply of the needed article created. If that were not true, the Necessary and Proper Clause, Article 1 8, clause 18, would be drastically limited in its application to the several war powers. The Court has declined to follow that course in the past .....
989. We decline to take it today. The result would be paralyzing. It would render Congress powerless to remedy conditions the creation of which necessarily followed from the mobilization of men and materials for successful prosecution of the war. So, to read the Constitution would be to make it self-defeating.
990. We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years, and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. There are not such implications in today's decision. We deal here with the consequences of a housing deficit greatly intensified during the period of hostilities by the war effort.
991. Any power, of course, can be abused. But we cannot assume that Congress is not alert to its Constitutional responsibilities. And the question whether the war power has been properly employed in cases such as this is open to judicial inquiry.
992. The question of he constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise. Here it is plain from the legislative history that Congress was invoking its war power to cope with a current condition of which the war was a direct and immediate cause. Its judgment on that score is entitled to the respect granted like legislation enacted pursuant to the police power .....
993. Under the present Act the Housing Expediter is authorized to remove the rent controls in any defence rental area if in his judgment the need no longer exists by reason of new construction or satisfaction of demand in other ways. The powers, thus, delegated are far less extensive than those sustained in Bowles v. Willingham, 321 U.S. pages 512, 515, 64 S.Ct. pages 647,648, and cases cited.
994. Objection is made that the Act by its exemption of certain classes of housing accommodations violates the Fifth Amendment. A similar argument was rejected under the Fourteenth Amendment when New York made like exemptions under the rent-control statute which was here for review in Marcus Brown Holding Co. V. Feldman, 256 U.S. pages 195, 198, 199, 41 S.Ct. pages 465, 466. Certainly Congress is not under greater limitations. It need not control all rents or none. It can select those areas or those classes of property where the need seems the greatest ....This alone is adequate answer to the objection, equally applicable to the original Act sustained in Bowles v. Willingham, supra, that the present Act lacks uniformity in application.
995. The fact that the property regulated suffers a decrease in value is no more fatal to the exercise of the war power that it is where the police power is invoked to the same end ? Reversed.
996. ??????????? Mr. Justice Jackson, concurring.
997. I agree with the result in this case, but the arguments that have been addressed to us lead me to utter more explicit misgivings about war powers than the Court has done. The Government asserts no Constitutional basis for this legislation other than this vague, undefined and undefinable "war power".
998. No one will question that this power is the most dangerous one to free Government in the whole catalogue of powers. It usually is invoked in haste and excitement when calm legislative consideration ofConstitutional limitation is difficult. It is executed in a time of patriotic fervor, that makes moderation unpopular. And, worst of all, it is interpreted by the Judges under the influence of the same passions and pressures. Always, as in this case, the Government urges hasty decision to forestall some emergency or serve some purpose and pleads that paralysis will result if its claims to power are denied or their confirmation delayed.
999. Particularly, when the war power is invoked to do things to the liberties of people, or to their property or economy that only indirectly affect conduct of the war and do not relate to the management of the war itself, the Constitutional basis should be scrutinized with care.
1000. I think we can hardly deny that the war power is as valid a ground for federal rent control now as it has been at any time. We still are technically in a state of war. I would not be willing to hold that war powers may be indefinitely prolonged merely by keeping legally alive a state of war that had in fact ended. I cannot accept the argument that war powers last as long as the effects and consequences of war for if so they are permanent--as permanent as the war debts. But I find no reason to conclude that we could find fairly that the present state of war is merely technical. We have armies abroad exercising our war power and have made no peace terms with our allies not to mention our principal enemies. I think the conclusion that the war power has been applicable during the lifetime of this legislation is unavoidable."
1001. In the same book at page 345, in the case of Korematsu v. United States, Mr. Justice Black delivered the opinion of the Court, wherein he stated, thus:-
1002. "The 1942 Act was attacked in the Hirabayashi case (320 U. S. 81, 63 S Ct. 1375) as an unconstitutional delegation of power; it was .contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander-in-Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a Constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the Government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.
1003. In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can Constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.
1004. "Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan. "
1005. We uphold the exclusion order as of the time it was made and when the ??????????? petitioner violated it In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens ....But hardships are part of war, and war is an aggregation of hardships. All- citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic Governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened ?? danger ? ... ???????? ... ???????? ... ???????? ... ???????? ...
1006. Mr. Justice Murphy, in his dissenting judgment, observed as under:-
1007. "This exclusion of 'all persons of Japanese ancestry, both alien and non-alien, "from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of Constitutional power' and falls into the ugly abyss of racism.
1008. In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill equip them to deal intelligently with matters so vital to the physical security of the nation.
1009. At the same time, however, it' is essential that there be definite limits to military discretion especially where martial law has not been declared. Individuals must not be left impoverished of their Constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted Constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. 'What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.' Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 196.
1010. The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his Constitutional rights is whether the deprivation is reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary Constitutional processes to alleviate the danger. United States v. Russell, 13 Wall, 623, 627, 628, 20, L.Ed. 474....Yet no reasonable relation to an 'immediate, imminent, and impending' public danger is evident to support, this racial restriction which is one of the most sweeping and complete deprivations of Constitutional rights in the history of this nation in the absence of martial law.
1011. It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area.
1012. The military command was, therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry- may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.
1013. The military necessity which is essential to the validity of the evacuation order resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very ? heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is' now pledged to destroy. To give Constitutional sanction to, that inference in this case, however, well-intentioned may have been the military command on the Pacific Coasts, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.
1014. Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free, a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combating these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved--or at least for the 70,000 American citizens especially when a large part of this number represented children and elderly men and women. Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of Constitutional rights of individuals."
1015. At page 353 of that book, Mr. Justice Jackson, in his dissenting view, observed as under:-
1016. "I should hold that a Civil Court cannot be made to enforce an order which violates Constitutional limitations even if it is a reasonable exercise of military authority. The Courts can exercise only the Judicial power, can apply only law, and must abide by the Constitution or they cease to be Civil Courts and become instruments of military policy.
1017. "My duties as a justice as I see them do not require me to make a military judgment as to whether General De Witt's evacuation and detention programme was a reasonable military necessity. I do not suggest that the Courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner."
57. Mr. Abid Hasan Minto next referred to Emergency Provisions in the Indian Constitution, 1950, under Articles 352 to 360. Two relevant Articles i.e. 352 and 359 are reproduced hereunder for reference:-
1018. "352. Proclamation of Emergency.--(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or (armed rebellion), he may, by Proclamation, take a declaration to that effect (in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation).
1019. (Explanation.--A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof).
(2) A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation..
(3) The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under Article 75) that such a Proclamation may be issued has been communicated to him in writing.
(4) Every Proclamation issued under this Article shall be laid before each House of Parliament and shall, except where it is. a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
1020. Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or the dissolution of the House of the People takes place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the Proclamation under clause (4):
1021. Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause:
1022. Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People.
(6) For the purposes of clauses (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting.
(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.
(8) Where a notice in writing signed by not less than one-tenth of the total number of Members of the House of the People has been given, of their intention to move a resolution for disapproving or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (1) or a Proclamation varying such Proclamation.--
(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.]
1023. [(9)] The power conferred on the President by this Article shall include the power to issue different Proclamations on different grounds, being war or external aggression or [armed rebellion] or imminent danger of war or external aggression of [armed rebellion], whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation. "
1024. "359. Suspension of the enforcement of the rights conferred by Part III during emergencies.--(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of [the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
1025. [(1-A)] While an order made under clause (1) mentioning any of the [the rights conferred by Part III (except Articles 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceased to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
1026. [Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken under this Article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.]
1027. [(I-B) Nothing in clause (1-A) shall apply---
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise that under a law containing such a recital.]
(2) An order made as aforesaid may extend to the whole or any part of the territory of India:
1028. [Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary.]
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament."
1029. He also referred section 361 of the Government of India Act, 1935, which relates to powers of the Governor, to make laws enabling him to discharge his functions as such. The section reads, thus:-
1030. "361.--(1) If at any time it appears to the Governor that, for the purpose of enabling him satisfactorily to discharge his functions in so far as he is by or under this Act required in the exercise thereof to act in his discretion or to exercise his individual judgment, it is essential that provision should be made by legislation, he may by message to both
1031. Chambers of the Legislature explain the circumstances which in his opinion render legislation essential and either--
(a) enact forthwith, as a Governor's Act, a Bill containing such provisions as he considers necessary; or
(b) attach to his message a draft of the Bill which he considers necessary.
(2) Where the Governor takes such action as is mentioned in paragraph (b) of the preceding subsection, he may at any time after the expiration of one month enact, as a Governor's Act, the Bill proposed by him- to the Chambers either in the form of the draft communicated to them, or with such amendments as he deems necessary, but before so doing he shall consider any address which may have been presented to him within the said period by either Chamber with reference to the Bill or to amendments suggested to be made therein.
(3) A Governor's Act shall have the same force and effect, and shall be subject to disallowance in the same manner, as an Act of the Legislature, and, if and so far as it makes any provision which would not be valid if enacted in an Act of the Legislature, it shall be void.
(4) ??????? Every Governor's Act shall be communicated forthwith to the Secretary of State and shall be laid by him before each House of Parliament.
(5) The functions of the Governor under this section shall be exercised by him in his discretion. "
1032. He then referred to 'N.S.Bindra's Interpretation of Statutes', Seventh Edition, 1984, in which at pages 938 and 939, it was observed:-
1033. "I. Constitution and other Statutes.--Accustomed as we have been in our day-to-day administration of justice to the interpretation of numerous statutes, we are apt to lose sight of the fact that the Constitution is unlike most of the statutes that we came across and has to be judged from somewhat different standards. The Constitution is the very framework of the body policy: its life and soul; it is the fountainhead of all its authority, the main spring of all its strength and power. The Executive, the Legislature, and the Judiciary are all its creation, and derive their sustenance from it. It is unlike other statutes which can be at any time altered, modified or repealed. Therefore, the language of the Constitution should be interpreted as if it were a living organism capable of growth and development if interpreted in the broad and liberal spirit, and not in a narrow and pedantic sense. The need for this caution is greater when the Court is called upon to interpret the Constitution of the great democratic republic of India, devised by the people of the land who were anxious to insure for themselves a Government of the People, by the people and far the people. The Constitution was not merely concerned with the present and the past; but also built for the future. It would be small credit to the Makers of the Constitution, if we start with the erroneous assumption that they failed to visualize the problems with which we are at present confronted, and that in the Constitution they did not provide for them..
1034. 2???????????.
3. Constitution outside the purview of Courts.--Being a paramount law a Constitution is outside the purview of the Courts, but a statute would be invalid if it contravenes any express provision of the Constitution or even if it is inhibited by the implied powers and restraints found in the Constitution. The implied restrains of the Constitution upon legislative power may be as effectual for its condemnation as the written words, and such restraints may be found either in the language employed, or in the evidence purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of the organic law. Questions of this character have frequently arisen in connection with legislation calculated to control municipal affairs, or in statutes prescribing conditions and qualifications for the selection of local officers, and in many cases such legislation has been declared unconstitutional, as being repugnant to the principal of local Government, although not contravening any express Constitutional provisions.
4. Applicability of rules of statutory construction.--The Constitution being essentially in the nature of a statute, the general rules governing the construction of statutes in the main apply to the constructions of Constitutions also. The fundamental rule of interpretation is the same whether it is the provisions of the Constitution or an Act of Parliament, namely, that the Court will have to ascertain the intention gathered from the words in the Constitution or the Act as the case may be. And where two constructions are possible that one should be adopted which would ensure a smooth and harmonious working of the Constitution and eschew that which would lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory. "
1035. The learned counsel referred to the following cases: Dr. S.C. Barat v. Hari Vinayak Pataskar (AIR 1962 M.P. 73), wherein at page 76 it was observed as follows:-
1036. "A Constitutional provision has the greatest claim to be construed 'ut res maxis valeat, Guam pereat', and it is the duty of the Court to see that as far as possible the intention of the Makers of the Constitution is effectuated to the fullest extent (see M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 895 at p 410). To arrive at the real meaning of the provision it is also legitimate to consider how the law on the subject stood immediately before the Constitution and the defect which the old law contained and the remedy provided by the Constitution to remove that defect (see Bengal Immunity Co. Ltd v. State of Bihar, (S) AIR ????????? 1955 SC 661 at p.674. ?? " .
1037. Henrietta Muir Edwards v. Attorney-General of Canada (AIR 1930 PC 120), wherein it was held that while determining a particular word in Act of Parliament, external and internal evidence can be considered. Relevant portion is reproduced below from page 121 of the report:-
1038. "In coming to a determination as to the meaning of a particular word in a particular Act of Parliament it is permissible to consider two points, viz., (i) The external evidence derived from extraneous circumstances such as previous legislation and decided cases, (ii) internal evidence derived from the Act itself. "
1039. Bengal Immunity Co. Ltd. v. State of Bihar (AIR 1955 SC 661 (Vol. 42 C. 101 Nov.) wherein at paragraph 22 of the report at page 674 it was observed as under:-
1040. "(22) It is a sound rule of construction of a statute firmly established in England as far back as 1584 when--'Heydon's case', (1584) 3 Co Rep. 7a (V) was decided that-
1041. ???????? "????. for the sure and true interpretation of all statutes in general (be they penal or beneficial restrictive or enlarging of the common law) four things are to be discerned and considered:-
1042. 1st. What was the common law before the making of the Act.
1043. 2nd . What was the mischief and defect for which the common law did not provide.
1044. 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and
1045. 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and 'pro privato commodo', and to add force and life to the cure and remedy, according to the true intent of the makers of the Act. pro bono nublico."
1046. In 'In re: Mayfair Property Co.' (1998)2 Ch 28 at p.35 (W) Lindley M.R. in 1898 found the rule "as necessary now as it was when Lord Coke reported 'Heydon's case (V)'. In 'Eastman Photographic Material Co. v. Comptroller General of Patents, Designs and Trade Marks', 1898 AC 571 at p. 576 (X) Earl of Halsbury re-affirmed the rule as follows:-
1047. "My Lords, it appears to me that to construe the Statute in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy. These three being compared I cannot doubt the conclusion.
1048. It appears to us that this rule is equally applicable to the construction of Article 286 of our Constitution. In order to properly interpret the provisions of that Article it is, therefore, necessary to consider how the matter stood immediately before the Constitution came into force, what the mischief was for which the old law did not provide and the remedy which has been provided by the Constitution to cure that mischief. "
1049. He also referred to "Commentary on the Constitution of India' by Dr. Durga\Das Basu, Sixth Edition, VOl.A, 1973 wherein under the title '(A) General Rules of Interpretation' it was observed as under:-
1050. "
1. The Rule of Expressed Intention.
1051. The fundamental rule of interpretation of all enactments to which all other rules are subordinate is that 'they should be construed according to the intent of the Parliament which passed the law.'
1052. For the purpose of interpretation, however, 'intent' or 'intention' does not mean what the Legislature meant to say, but what the meaning of the words employed by the Legislature is. In other words, Courts have to find out the expressed intention of the Legislature, from the words of the enactment itself. It is not at liberty to give-- 'a speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law, or Equity what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable and necessary implication'."
1053. In other words:-
1054. "When the meaning of words is plain, it is not the duty of Courts to busy themselves with supposed intentions. "
1055. The above rule has been followed by the Privy Council in interpreting the Dominion Constitutions. Thus, observed the Privy Council:--
1056. "In the interpretation of a completely self-governing Constitution, founded upon a written organic instrument such as the British North America Act, and the Constitution of the Commonwealth of Australia, if the text is explicit, it is conclusive alike in what it directs and what it forbids."
1057. Similarly, in determining the validity of the Income-tax (War-time Arrangements) Act of 1942, the Australian High Court observed that once they were satisfied that the legislation was within the powers of the Commonwealth Parliament, they had nothing to do with the wisdom or expediency of the legislation:
1058. ??????????? "The controversy before the Court is a legal controversy The ? Court is not authorized to consider whether the Acts are fair and just as between States--whether some States are being forced, by a political combination against them to pay an undue share of Commonwealth expenditure or to provide money which other States ought fairly to provide. These are arguments to be used in Parliament and before the people. They raise questions of policy which it is not for the Court to determine or even to consider. "
1059. According to this rule, a Constitution is to be interpreted in the same manner as any other statute namely by reference to its terms alone, and nothing is to be read into it on grounds of policy, expediency or justice or political exigency, motives of the framers or possibility of abuse of power, and the like."
1060. "The rule of literal construction has, of course, the virtue of certainty, which must necessarily be a prime objective of the administration of justice in Courts of law. But notwithstanding the warning of English Judges that to depart from this 'cardinal rule' is to .' launch into a sea of difficulties which it is not easy to fathom', a Constitution has to be distinguished from an ordinary statute such as the Limitation Act or a statute governing the relation between landlord and tenant.
1061. As an organic instrument, it cannot be its nature, be as precise and specific as ordinary statutes of the nature just mentioned. The objectives behind the adoption of a written Constitution are, in general, more comprehensive and far-reaching than in the case of ordinary statutes and, unless, the Courts interpret provisions in a Constitution in the light of the circumstances in which the Constitution was made, it might involve an abuse even of the literal rule, as Lord Blackburn pointed out in the River Weir Commissioners' case.
1062. "Apart from that, the exclusionary attitude of the Privy Council in the matter of statutory interpretation cannot logically be maintained in regard to Constitutional interpretation where the Court is called upon to investigate into deeper questions, such as the reasonableness of a classification made or of a restriction imposed by the Legislature. In the determination of such questions the Court must necessarily take into consideration all facts and circumstances existing at the time of the legislation and the object behind the relevant provisions of the Constitution. Of course, this does not mean that because a similar legislation existed before the Constitution a classification made by the impugned law must be held to be reasonable."
1063. Reference was next made to Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 SC 313), wherein at page 329 of the report it was observed as follows:-
1064. "The next contention advanced on behalf of the appellant is that since clause (3) of Article 3D of the Constitution requires that the President shall, when he is satisfied that the grounds on which he has issued a Proclamation of Emergency have ceased to exist, revoke the Proclamation, the President was bound to do as soon as hostilities ceased and the Tashkent Declaration was announced. If he has not done so, the appellant contends, the High Court should declare the Proclamation as revoked. This argument is wholly misconceived, for, it is the President who has to be satisfied that the grounds on which he issued the Proclamation have ceased to exist. It is not for the Courts to substitute their satisfaction for the satisfaction of the President. In any event, it cannot be said that merely because hostilities have ceased, the emergency is also at an end. This is a purely political question which is outside the competence of the Courts to decide, for, the declarations of war and peace are within the exclusive competence of the executive Government of the country. In such matters the Courts speak in the same voice as the Chief Executive of the State, for, these are not questions which are amenable to judicial determination. No Court can give a declaration that a state of war has ceased to exist when the Chief Executive does not say so. "
1065. He also referred to the cases of M.M.Mansur Ali v. Arodhendu Shekhar Chatterijee (PLD 1969 SC 37) and Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738).
58. Mr. Abid Hasan Minto, learned Advocate Supreme Court President, Supreme Court Bar Association, who appeared as amicus curiae, took great pains in referring to the case-law on Emergency, Fundamental Rights and general rules of Interpretation of Statutes and Constitution, which are wellsettled. There is no cavil with his contention that a provision restricting the Fundamental Rights or Provincial autonomy ought not to be interpreted liberally so as to widen its scope. Clearly, the Fundamental Rights cannot be suspended in routine and the citizens cannot be deprived of their liberties unless the deprivation is reasonably related to the object of the Proclamation of Emergency and in dong so, the Executive must apply its mind having regard to the object of Proclamation of Emergency, while suspending the Fundamental Rights, which is lacking in the instant case.
59. Mr. Abid Hasan Minto was also right in contending that the 'satisfaction' of the President, which is subjective and not objective, was necessary before he proclaimed the Emergency and the Court is competent to peruse the material provided to the President to satisfy himself whether a prima facie case was made for issuance of Proclamation of Emergency. The onus to prove that the Emergency was lawfully imposed prima facie lay on the respondents and not on the petitioners. In the instant case, however, we have' found that after perusal of the material available before the President presented that a prima facie case had been made out justifying issuance of Proclamation of Emergency. Further, once the Proclamation of Emergency is held to be valid, the duration of its continuance is to be left to-the President to decide but this Court is not powerless to review/re-examine the continuance of Emergency at any stage, if the circumstances so warrant as highlighted by the Hon'ble Chief Justice in his exhaustive judgment. This Court is also not powerless to grant relief to a party in appropriate cases, in which it is found that failure to exercise power of revocation of Emergency by the President would be abuse of his discretion. 1, however, reiterate that the prerequisite conditions for promulgation of Emergency under Article 232, were available when the Proclamation was issued by the President, which was a bona fide exercise of powers vested in the President under Article 232 of the Constitution. This is also a complete answer to the brief submissions made by Mr. Muhammad Yousaf Leghari, ViceChairman, Pakistan Bar Council.
60. The submissions made by Ch. Muhammad Farooq, the learned Attorney-General for Pakistan, on the validity of Proclamation supported by the material placed by him in Court .has been referred to in the preceding paragraphs. It is, therefore, not necessary to repeat the same. The learned Attorney-General, however, assailed the maintainability of the above petitions on the following grounds:
(a) That the President passed the Order, dated 28th May, 1998, in exercise of powers conferred on him by clause (2) of Article 233 of the Constitution, declaring that the right to move any Court, including a High Court and the Supreme Court for the enforcement of all the Fundamental Rights, conferred by Chapter 1 of Part 11 of the Constitution, and all the proceedings pending in any Court which are for the enforcement or involve the determination of any question as to the enforcement of any of the said rights, shall remain suspended for the period during which the said Proclamation is in force;
(b) ??????? That the act of the President of proclaiming Emergency was in his sole power based on his own satisfaction, which is not justiciable in a Court of law and that the Proclamation of Emergency as well as the Order, passed under Article 233(2) of the Constitution, having been approved by the Resolutions of the Joint Sitting of the Parliament, express the will/satisfaction of the people of Pakistan sanctifying the Proclamation of Emergency and the order in question; and
(c) ??????? That the judgments of this Court in the cases of Pir Sabir Shah (PLD 1994 SC 738) and Mian Muhammad Nawaz Sharif (PLD 1993 SC 473) supra, are not attracted in the present case, as, firstly, when the Constitution Petition field by Mian Muhammad Nawaz Sharif, was entertained, the provisions of Chapter 1 of Part II of the Constitution, relating to the Fundamental Rights and their enforcement were intact, and, secondly, no parallel can be drawn between a situation, which was subject-matter of action under erstwhile Article 58(2)(b) with the circumstances contemplated by Articles 232 and 233 of the Constitution, in that, under the omitted Article 58(2)(b), an opinion was required to be formed on the basis of appreciation and detailed scrutiny of various allegations, malfunctions and misdeeds of the Government, to justify passing an Order thereunder, but the actions under Articles 232 and 233 of the Constitution are required to be taken with immediate effect, -on subjective satisfaction of the President, to avert any threat of external aggression, or internal disturbance, therefore, reference to said Article 58(2)(b) and judgment in Mian Nawaz Sharif's case is irrelevant whereas in Pir Sabir Shah's case, this Court had drawn a distinction between a Proclamation under Article 234 and a Proclamation under Article 232 of the Constitution, which can be invoked by the President when the President is satisfied that a grave situation existed in which the security of Pakistan, or any part thereof, was threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control.
1066. The learned Attorney-General, while giving a brief legislative history of Emergency Provisions in the Sub-continent, in particular, argued that emergency provisions, including the power to proclaim Emergency and to issue orders for suspension of enforcement of Fundamental Rights, had been provided since the promulgation of the Government of India (Consolidated) Act, 1924 , which were retained in the Government of India Act, 1935. He referred to section 102 of the Government of India Act, 1935 , which has been reproduced above, to contend that the words 'imminent danger' are not available there.
61. The learned Attorney-General next referred to 1956 Constitution to contend that emergency provisions were provided under Article 191(12) (ibid) while under Article 192(1) it was provided that during the Proclamation of Emergency, was in force, the President could suspend the enforcement of Fundamental Rights. Reference was then made to 1962 Constitution whereby power to proclaim Emergency was conferred upon the President by Article 30(1) ibid. It was submitted that though the power to suspend the enforcement of Fundamental Rights was not originally provided, yet the same was conferred upon the President vide Article 30(9) inserted by section 5 of the Constitution (First Amendment) Act, 1963, and that these emergency provisions had been incorporated in the Constitution of the Islamic Republic of Pakistan, 1973.
62. He further argued that issuance of the Proclamation of Emergency was prerogative of the President and it could not be challenged before a Court of law. He elaborated by submitting that all the pillars of the State i.e. Parliament, Executive and Judiciary, work within their respective limitations and as such Judiciary had no authority to interfere in the affairs of the Parliament and the President. He submitted that India was our shrewd enemy and with her the threat of war was enough to impose emergency. He referred to the Mse of Muhammad Suleman v. Islmic Republic of Pakistan (PLD 1976 Lahore 1250), wherein at page 1257 'emergency' has been explained in the following words:-
1067. "The emergency, therefore, means the existence of the condition whereby the security of Pakistan or any part thereof is threatened by war, external aggression or internal disturbances and it exists when the President makes the Proclamation of Emergency. The actual occurrence of war or of any internal violence is not necessary to justify a Proclamation of Emergency by the President. The President may make such a Proclamation if he is satisfied that there is an imminent danger of such external or internal aggression. The Proclamation of Emergency has to be laid under clause (7) of Article 232 before a joint sitting which has to be 'summoned by the President to meet within thirty days of the Proclamation being issued' and under sub-clause (a) it 'shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting'. It was further provided in clause (b) (it has now been substituted by Constitution (Third Amendment) Act, 1975) that it 'may, by a resolution of a joint sitting, be continued in force for a period not exceeding six months at a time' ... .. . .. ... ..It may now continue indefinitely until it is disapproved by a joint sitting by a resolution of the two Houses or the President terminates it."
1068. He referred to Black's Law Dictionary, Fifth Edition, in which word 'emergency' has been defined as under:-
1069. "A sudden unexpected happening; an unforeseen occurrence or condition; perplexing contingency or complication of circumstances; a sudden or unexpected occasion for action; exigency; pressing necessity. Emergency is an unforeseen combination of circumstances that calls for immediate action."
1070. In the same Dictionary,. word "threat" has been defined in the following words:-
1071. "Threat".--A communicated intent to inflict physical or other harm on any person or on property. A declaration of an intention to injure another or his property by some unlawful act ? A declaration of intention or determination to inflict punishment, loss, or pain on another, or to injure another by the commission of some unlawful act ... .. ..A menace; especially, any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action which alone constitutes consent. A declaration of one's purpose or intention to work injury to the person, property, or rights of another, with a view of restraining such person's freedom of action.
1072. The term, 'threat' means an avowed present determination or intent to injure presently or in the future. A statement may constitute a threat even though it is subject to a possible contingency in the maker's control. The prosecution must establish a 'true threat' which means a serious threat as distinguished from words uttered as mere political argument, idle talk or jest. In determining whether words were uttered as a threat the context in which they were spoken must be considered."
1073. He then referred to 'Corpus Juris Secundum', by Francis, J. Ludes and Harold, J. Gilbert, Volume 29-A, wherein at page 140 "Emergency' has been exhaustively defined as follows:-
1074. "Emergency
1075. ????????????????????????????????????????????????? As a Noun
1076. It has been said that it is difficult to define an emergency, and that the term is not the subject of an easy or exact definition.
1077. Although the term has been defined as meaning the act of emerging., it is more commonly used and generally understood to mean a sudden occurrence or exigency, implying imminent danger which leaves no time for deliberation, or a sudden or unexpected necessity requiring speedy action; and, as a generalization, it is a sudden or unexpected event which creates a temporarily dangerous condition usually necessitating immediate or quick action.
1078. While it has been said that the controlling idea in all of the various definitions is that an emergency is something unforeseen, and that by its very nature it is something which reasonably may not be anticipated, it has also been said that the word does not always or necessarily imply suddenness or unforeseeableness, or a temporary condition, and that an emergency may comprehend a pressing necessity or exigency, not necessarily wholly unexpected, and Corpus Juris Secundum has been cited as authority for the proposition that there is no necessity that a crisis be unforeseen, sudden, or unexpected for it to constitute an emergency.
1079. The word 'emergency' has been variously defined, and the varying definitions demonstrate that the meaning of the term frequently is controlled by the circumstances under which it is used.
1080. The term 'emergency' has been generally defined to mean any case of casualty or unavoidable accident; any event or occasional combination of circumstances which calls for immediate action or remedy; a sudden or unexpected happening or occasion calling for immediate action; a sudden or unexpected occurrence or condition calling for immediate action; a sudden or unexpected occasion for action; an unforeseen occurrence or condition; an unforeseen combination of circumstances which calls for immediate action; a sudden or unexpected occurrence which demands immediate action; an unforeseen occurrence or combination of circumstances which calls for an immediate action or remedy.
1081. The word 'emergency' is further defined to mean exigency; pressing necessity; imminent peril and perilous position which would be caused by an agency beyond one's control; and, more specifically a perplexing contingency or complication of circumstances.
1082. .",s applied to legislative action, an emergency may be a condition that deviates from antecedent experience and for which the usual forms of law seem inadequate to serve the public order; a relatively permanent condition of insufficiency of service or of facilities resulting in social disturbance or distress.
1083. It has been said in general terms that the word includes an unforeseen and ordinarily an unusual occurrence, but to state specifically what constitutes an emergency is not an easy task. An emergency has been held to consist of an unforeseen event or unexpected combination of circumstances which justifies the cancellation of a contract, or unusual drought conditions affecting a large area used for sustenance of domestic live stock. It has been held not to include a danger that individuals, carrying on a loan shark business, would dispose of property invested in the business, an oversight or inadvertence on the part of an employee, conditions of wind, tide, and weather which may be considered beforehand and duly provided for, and delays in the arrival and departure of trains."
1084. The learned Attorney-General in this behalf, . referred to Basu's Commentary on the Constitution of India, Sixth Edition, Volume N, 1988, wherein at Part XVIII, Emergency in General and its provisions in Constitutions of other countries; have been discussed in detail in the following words:-
1085. "The Problem of Emergency in a Democracy:
1086. Whatever be that form of Government, emergent situations are bound to arise in any country, owing to various factors like war, economic or financial breakdown, which call for immediate measures to be taken by the Government to safeguard the stability of the country or the safety of the citizens, which, in order to be adequate, must be different from or in addition to the normal system of administration.
1087. But in a country having a democratic system of Government such abnormal situation presents a dilemma because the assumption of any extraordinary powers by the Government must be in derogation of the civil and political rights normally ensured to the citizens by the democratic Constitution.
1088. A satisfactory solution of the problem can, therefore, be had only if extraordinary powers are available to the Government to meet such emergencies with the least encroachment upon tote rights and liberties of the citizens.
1089. The problem has been sought to be solved in different countries in different ways. In some, the written Constitution itself provides, as in India, with a separate set of provisions which come into operation, in different kinds of Emergencies. In some others, as in the U.S.A., though the Constitution does not contain explicit or elaborate provisions to deal with emergencies, extraordinary powers have been inferred from the normal provisions, by judicial interpretation. In a country with an unwritten Constitution, such as the U.K., emergency powers are conferred by statute, apart from common law.
1090. ?????????????????????????????????????????????????????????
1091. ??????????????????? ??????????????????????????????????????????????????? Other Countries
(A) Enlgand.--Though the need for extending the powers of the Government in times of emergency for the self-preservation of the Commonwealth has been acknowledged in England from earliest times, the claim of the Sovereign to exercise such extraordinary powers by means of
1092. Prerogative has, with the advent of Parliamentary Government, given way to the proposition that no extraordinary power can be exercised by the Executive without Parliamentary sanction.
(1) War Emergency
1093. In the Ship-Money case, the majority of the Judges of the Court of Exchequer indeed upheld the claim of the King (Charles I) that the King was the sole judge as to the existence of an emergency and also of the steps which were needed to be taken to meet the emergency; thus, the King's prerogative to defend the realm in time of danger prevailed over the principle that taxation required the consent of Parliament. This decision was, however, declared void by the Long Parliament in 1641 and the claim of the Crown came to be silenced by the Bill of Rights, 1688, which declared that "Levying of money for or to the use of the Crown by pretence of prerogative without consent of Parliament for longer time or in other manner is illegal. "
1094. ???????????????.
1095. ???????????????.
1096. In modern times, however, the powers of the Executive, in the United Kingdom, are enlarged not by the Royal Prerogative, but by legislation by Parliament, such as the Defence of the Realm Acts, 1914-15 or the Emergency Powers (Defence) Acts, 1939-40, which confer large discretionary powers in the Executive to meet the emergency. Such powers include--
(a) the power to detain a subject of hostile association, without trial
(b) to regulate essential supplies and services in order to ensure their equitable distribution;
(c) acquisition or requisitioning of private property
(d) temporary employment of members of the armed forces in urgent works of national importance ........................... ??????????????.
(D) German Reich. 1919.--Paras. 24 of Article 48 of the German Constitution of 1919 provided:--
1097. "If public safety and order in the German Commonwealth is materially disturbed or endangered, the National President may take necessary measures to restore public safety and order, and, if necessary, to intervene by force of arms. To this end he may temporarily suspend, in whole or in part, the fundamental rights established in Articles 114, 115, 118, 123, 124 and 153.
1098. The National President must immediately inform the National Assembly of all measures adopted by authority of paragraphs 1 and 2 of this Article. These measures shall be revoked at the demand of the National Assembly.
1099. If there is danger from delay, the State Cabinet may for its own territory take provisional measures as specified in paragraph 2. These measures shall be revoked at the demand of the National President or of the National Assembly.
1100. The details will be regulated by a national law."
1101. The peculiarities of the above emergency power vested in the German President were:--
(a) The President could assume these powers by a simple order and he alone was competent to decide if public safety and order had been endangered and, if so, what measures were to be adopted
(b) The emergency power extended to both external and internal disturbances.
(c) The President could establish Courts-martial, suspend individual liberties, rule by Ordinances and virtually act as a dictator by such an order, subject only to a demand for revocation by the National Assembly.
1102. (d)???????..
1103. (e)... ... ... ... ... ... ...
(F) Fifth French Republic.--Article 16 of the Constitution of October, 1958, provides:
1104. "When the institution of the Republic, the independence of the nation, the integrity of territory or the fulfilment of its international commitments are threatened in a grave and immediate manner and the regular functions of the Constitutional powers interrupted, the President of the Republic shall take the measures required by the circumstances, after official consultation with the Premier and the Presidents of Assemblies, as well as with the Constitutional Council.
1105. He shall inform the nation of these measures in a message.
1106. These measures must be prompted by the desire to ensure to the constitutional powers, in the shortest possible time, the means of accomplishing their mission. The Constitutional Council shall be consulted with regard to such measures.
1107. Parliament shall meet by right
1108. The National Assembly may not be dissolved during the exercise of exceptional powers. "
1109. ????????
1110. ?????????
1111. It is to be noted that the emergency powers conferred upon the President by Article 16 had no precedent under the preceding Constitutions of the French Republic and are comparable only to the powers under Article 48 of the Weimar Constitution of Germany (p. 184, ante). The peculiarity of the emergency provision in Article 16 of the French Constitution of 1958 are--
1112. (a)???????????????????.
(b) ??????? Neither the decision of the President to declare a State of Emergency (Art. 16) nor the decrees issued by the President during such emergency are open to judicial review.
1113. (c)?????????????????.
1114. He next referred to American Jurisprudence, Second Edition, Volume 16, 1979, to contend that particular executive actions are not subject to judicial review. At page 315 it has been observed as follows:-
1115. "Particular executive actions not subject to judicial review.
1116. In accordance with the general rule that the judiciary will not encroach upon the executive, the Courts will not interfere with executive action relating to executive, administrative, political, military, naval international, or territorial matters including land boundaries or surveys and disposition of public lands; or matters relating to immigration internal revenue, the enforcement of law, commutation of sentences or grants of pardons, or the appointment, compensation, suspension, or removal of officers or employees. "
1117. At page 316, it was observed thus;-
1118. "Limitations as respects legislature; encroachment (judicial legislation).
1119. A fundamental principle, scrupulously observed by the Courts, is that the judiciary may not encroach upon the functions of the Legislature, or usurp its powers. The most common occurrence of the refusal of the Courts to stray outside the proper confines of judicial activity arises in cases dealing with the provisions of statutes. Since the power to make, alter, or repeal laws is legislative, the Courts will not encroach upon the domain of a co-ordinate department of the Government by judicial enlargement, abridgment, alternation, or repeal of legislative enactment. Absent a violation of due process or other specific Constitutional guarantee, the Courts cannot substitute their social and economic beliefs for that of the Legislature. In other words, the Courts have no power to make law, but only to declare the law as it is, construe it, and apply or administer it, they must take the laws as they find them. They do not sit to revise legislative action or determine the wisdom of statures. With questions of wisdom, propriety, appropriateness, necessity, policy, or expediency of legislation the Courts have no concern and can give no relief for resulting evil, inconvenience, hardship, or injustice, The Courts are similarly unconcerned with questions of legislative motivation. They have no right to repeal, alter, modify, or change the law of the land, even though it plainly appears that the law in force is wrong, or absolete or unnecessary because of a change in conditions or circumstances. What the Legislature is not forbidden to do by the Constitution, it should not be prevented from doing by the Courts.
1120. In line with the general rule of impermis5ibility of judicial legislation, it is held that the Courts in performing their function of construing statutes, may not interpolate words which the Legislature has omitted. Such action by a Court would be nothing less than judicial legislation pure and simple, and clearly beyond its powers. Thus, Courts cannot by an act of judicial legislation, add words of limitation to a statute expressed in general terms in order to sustain it, where its operation on the subject-matter embraced in its terms is unconstitutional. Nor may they create exceptions to or substitutions in a legislative plan. By the same token, Courts may not extend or enlarge a statute by interpretation. And that which the legislature has directed, the Courts cannot declare immaterial ...."
1121. At page 317, entitled "interference", it was observed:-
1122. "The principle is well-established that the Courts will not assume a jurisdiction in any case which will amount to an interference by the judicial department with the Legislatore, since each department is equally independent within the powers conferred upon it by the Constitution. The Courts have no power to interfere with, or control the exercise on the part of the Legislature of, the power belonging exclusively to that department. For this reason the Courts cannot convene the Legislature or reconvene it after it has adjourned. The judiciary, furthermore, cannot interfere with the legislative process of enacting the laws. During the process of legislation in any mode, the work of the law-makers is not subject to judicial arrest or control or open to judicial inquiry. This rule is equally applicable to the adoption of municipal Ordinances. The Courts have no general supervision over legislation, and are without power to review the exercise of legislative discretion..."
1123. Reference was to American Constitution, 7th Edition, page 72, wherein while discussing the power of judicial review against the actions of the Government, it was observed as follows:-
1124. "Do the provisions of section 4, Article IV bring about these strange, far-reaching and injurious result? That is to say, do the provisions of that Article obliterate the division between judicial authority and legislative power upon which the Constitution rests? In other words, do they authorize the judiciary to substitute its judgment as to a matter ? purely political for the judgment of Congress on a subject committed to it and thus overthrow the Constitution upon the ground that thereby the guarantee to the States of a Government Republican in form may be secured, a conception which after all rests upon the assumption that the States are to be guaranteed a Government republican in form by destroying the very existence of a Government Republican in form in the Nation?
1125. We shall not stop to consider the text to point out how absolutely barren it is of support for the contentions sought to be based upon it, since the repugnancy of those contentions to the letter and spirit of that test is so conclusively established by prior decisions of this Court as to cause the matter to be absolutely foreclosed. "
1126. The learned Attorney-General then referred to "A Treatise on the Constitutional Limitations" by Thomas M. Cooley, Eighth Edition, Volume One, 1927, wherein under the title "Inquiry into Legislative Motives" at page 379 of the Book, it was observed as under:-
1127. "From what examination has been given to this subject, it appears that whether a statute is Constitutional or not is always a question of power; that is, a question whether the Legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the Constitutional limits and observed the Constitutional conditions. In any case in which this question is answered in the affirmative, the Courts are not at liberty to inquire into the proper exercise of the power. They must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the Legislature when the Act was passed; and if any special finding was required to warrant the passage of the particular Act, it would seem that the passage of the Act itself might be held equivalent to such finding. And although it has sometimes been urged at the bar that the Courts ought to inquire into the motives of the Legislature where fraud and corruption, were alleged, and annul their action if the allegation were established the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. The reasons are the same here as those which preclude an inquiry into the motives of the Governor in the exercise of a discretion vested in him exclusively. He is responsible for his acts in such a case, not to the Courts, but to the people. "
1128. Reference was made to the case of Smith v. Kansas City Title & Trust Co. 255 U.S. 180 65 L.ed.577, 41 Sup.Ct.Rep.243, wherein Mr. Justice Day, observed:-
1129. "Nothing is better settled by the decisions of this Court than that when congress acts within the limits of its Constitutional authority, it is not the province of the judicial branch of the Government to question its motives... "
1130. In the case of People v. Draper, 15 N.Y.532, 545, Denio Ch. J., observed as follows:-
1131. "We are not made Judges of the motives of the Legislature, and the Court will not usurp the inquisitorial office of inquiring into the bona fides of that body in discharging its duties. 'Shankland, J., in the same case, p.555'. The powers of the three departments are not merely equal; they are exclusive in respect to the duties assigned to each. They are absolutely independent of each other ... To institute the proposed inquiry would be a direct attack upon the independence of the Legislature, and a usurpation of power subversive of the Constitution."
1132. In the case of Soon Hing v. Crowley, 113 U.S. 703, 28 L.ed. 1145, 5 Sup. Ct. Rep. 730, it has been observed thus:-
1133. "It is ... argued, if a lawful power may, be exerted for an unlawful purpose, and thus, by abusing the power, it may be made to accomplish a result not intended by the Constitution, all limitations of power must disappear, and the grave function lodged in the judiciary, to confine all the ? departments within the authority conferred by the Constitution, will be of no avail. This, when reduced to its last analysis, comes to this: that, because a particular department of the Government may exert its lawful powers with the object or motive of reaching an end not justified, therefore, it becomes the duty of the judiciary to restrain the exercise of a lawful power wherever it seems to the judicial mind that such lawful power has been abused. But this reduces itself to the contention that, under our Constitutional system, the abuse by one department of the Government of its lawful powers is to be corrected by the abuse of its powers by another department. The proposition, if sustained, would destroy all distinction between the powers of the respective departments of the Government, would put an end to that confidence and respect for each other which it was the purpose of the Constitution to uphold, and would thus, be full of danger to the permanence of our institutions... It is, of course, true, as suggested, that if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the Government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the exercise of a lawful power."
1134. He next referred to Halsbury's Laws of England", Fourth Edition, Volume 49, 1984, wherein at page 18, paragraph 101 entitled 'Existence of a state of war' it has been observed as under:-
1135. "At common law no state of war exists between the United Kingdom and a foreign State until there has been a formal declaration of war by the Crown or hostilities have been commenced by the authority of the Crown. Similarly a war may be terminated only by the authority of the Crown, and this is usually effected by a treaty of peace and announced to the nation by proclamation or Order in Council. A certificate of the Secretary of State for Foreign and Commonwealth Affairs to the effect that the Crown is still at war with a foreign State is conclusive evidence that the state of war is not at an end. During the course of a war with a foreign state all commerce and intercourse between British subjects resident in British territory and the subjects of that State, or with persons residing there, is prohibited except under licence. Judicial notice will be taken of the existence of a state of war between this country and any other, when that is the fact, even after the termination of hostilities."
1136. He further referred to Comparative Constitutional Law: Cases and Materials by Harry E. Groves, wherein in the case of The King (at the Prosecution of Zadig) v. Halliday, House of Lords (1917) A.C. 260, it was observed as follows:-
1137. "The truth of the recital that Zadig is a person of hostile origin and associations was not questioned, but it was insisted that Parliament had not conferred the power to make such an order in the interest of the public safety against such persons... it may be necessary in a time of great public danger to entrust great powers to His Majesty in Council, and that Parliament may do so feeling certain that such powers will be reasonably exercised... The regulations are to be for preventive purpose...
1138. One of the most obvious means of taking precautions against dangers is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. It is to this that Regulation 14-b is directed. The measure is not punitive but precautionary. It was strongly urged that no such restraint should be imposed except as the result of a judicial inquiry, and indeed counsel for the appellant went so far as to contend that no Regulation could be made forbidding access to the seashore by suspected persons. It seems obvious that no Tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a Court of law. No crime is charged. The question is whether there is ground for suspicion that a particular person may be disposed to help the enemy. The duty of deciding this question is by the order thrown upon the Secretary of State, and an advisory committee, presided over by a Judge of the High Court, is provided to bring before him any grounds for thinking that the order may properly be revoked or varied.
1139. The statute was passed at a time of supreme national danger, which still exists. The danger of espionage and of damage by secret agents to ships, railways, munition works, bridges, etc., had to be guarded against. The restraint imposed may be necessary measure of precaution, and in the interests of the whole nation it may be regarded as expedient that such an order should be made in suitable cases. This appears to me to be the meaning of the statute. Every reasonably precaution to obviate hardship which is consistent with the object of the regulation appears to have been taken ... ... ... ... ... ... ... ... ... ... ...
1140. It is pointed out that the powers ... are drastic and might be abused. That is true. But the fault, if fault there be, lies in the fact that the British Constitution has entrusted to the two Houses of Parliament, subject to the assent of the King, an absolute power untrammelled by any written instrument obedience to which may be compelled by some judicial body. The danger of abuse is theoretically present; practically as things, exist, it is in my opinion absent ...."
1141. .... However, precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement ...."
1142. In the said book, the case of Liversidge v. Anderson and another (House of Lords), (1942) A.C. 206, wherein it was observed:-
1143. " .... That Court held that the appellant at the present stage was not entitled to any of the particulars he was claiming and the appeal was dismissed, but, having regard to the great importance of the questions arising out of orders, for detention under Regulation 18-B of the Defense (General) Regulations the appellant was given leave to appeal to this House .
1144. ... Viscount Maugham ... The real object of the application is to raise at this early stage the vital question as to what onus, if any, lies on the respondents as defendants in the action in the circumstances of the case... The respondents rely on the order for the detention of the appellant above referred to. If it is valid, the action must clearly, fail. The appellant, accordingly, seeks to throw on the respondents the burden of justifying the order...
1145. In the present case there are a number of circumstances which tend to support the latter conclusion.
1146. First, Regulation 18-B, paragraphs (I) and (I-A), alike require the Secretary of State to have reasonable cause to believe two different things. Taking the first paragraph, he must, in the first place, believe the person (a) to be of hostile origin or associations, or (b) to have been recently concerned in acts prejudicial to the public safety or the defence of the realm, or (c) in the preparation or instigation of such acts, or (d) to have been or to be a member of, or (e) to be active in the furtherance of the objects of organizations which are carefully defined by reference to the personal decision of the Home Secretary. Any one of these various circumstances is sufficient to satisfy the first fact which the Secretary of State must believe, and I do not doubt that a Court could investigate the question whether there were grounds for a reasonable man to believe some at least of those facts if they could be put before the Court. But then he must at the same time also believe something very different in its nature, namely that by reason of the first fact, ' it is necessary to exercise control over" the person in question. To my mind this is so clearly a matter for executive discretion and nothing else that I cannot myself believe that those responsible for the Order in Council could have contemplated for a moment the possibility of the action of the Secretary of State being subject to the discussion, criticism and control of a Judge in a Court of law. If, then, in the present case the second requisite, as to the grounds on which the Secretary of State can make his order for detention, is left to his sole discretion without appeal to a Court, it necessarily follows that the same is true as to all the facts which he must have reasonable cause to believe.
1147. Secondly, it is admitted that the Home Secretary can act on hearsay and is not required to obtain any legal evidence in such a case, and clearly is not required to summon the person whom he proposes to detain and to hear his objections to the proposed order. Since the Home Secretary is not acting judicially in such a case, it would be strange if his decision could be questioned in a Court of law.
1148. Thirdly, and this is of even greater importance, it is obvious that in many cases he will be acting on information of the most confidential character, which could not be communicated to the person detained or disclosed in .Court without the greatest risk of prejudicing the future efforts of the Secretary of State in this and like matters for the defence of the realm. A very little consideration will show that the power of the Court, (under section 6 of the Act) to give directions for the hearing of proceedings in camera would not prevent confidential matters from leaking out, since such matters would become known to the person detained and to a number of other persons. It seems to me impossible for the Court to come to a conclusion adverse to the opinion of the Secretary of State in such a matter. It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do so would be contrary to the public interest, and that this privilege of the Crown cannot be disputed. It is not ad rem on the question of construction to say in reply to this argument that there are cases in which the Secretary of State could answer the attack on the validity of the order for detention without raising the point of privilege . . . . . . . . . . . . . .
1149. Fourthly, it is to be noted that the person who is primarily entrusted with these most important duties is one of the principal Secretaries of State, and a member of the Government answerable to Parliament for a proper discharge of his duties. I do not think he is at all in the same position, as, for example, a police constable ... ... ... ... ... .. ...It seems to me that, if ? any such appeal had been thought proper, it would have been to a special Tribunal with power to inquire privately into all the reasons for the Secretary's action, but without any obligation to communicate them to the person detained. The objections to an appeal in a case of mere suspicion and in time of war are not far to seek, but, however, that may be, an application to the High Court, with power to the Judge to review the action of the Secretary of State, seems to be completely inadmissible, and I am unable to see that the words ability, not of criminal conviction which can only be justified by legal evidence.
1150. As I have indicated, a Court of Law manifestly could not pronounce on the reasonableness of the Secretary of State's cause of belief unless it were able to place itself in the position of the Secretary of State and were put in possession of all the knowledge both of facts and of policy which he had. But the public interest must, by the nature of things, frequently preclude the Secretary of State from disclosing to a Court or to anyone else the facts and reasons which have actuated him. What is to happen then? The appellant says that the Court is entitled and has a duty to examine the grounds of the Secretary of State, belief. But the Court is also bound to accept a statement by the Secretary of State that he cannot consistently with the public interest divulge these grounds. Here is indeed an impasse. The appellant's solution leas the merit of courage, not to say audacity. He says that where the Secretary of State, by declining to disclose his information, has failed, through no fault of his own, to justify the detention, he must be held confessed of having falsely imprisoned the detained person and must be mulcted in damages. It will naturally be in the most dangerous cases, where detention is most essential to the public safety, that the information before the Secretary of State is most likely to be of a confidential character, precluding its disclosure. Yet the Court is to be constrained where detention is most justifiable to find the detention unjustified. I decline to accept an interpretation of the regulation which leads to so fantastic a result.
1151. Were the person detained left without any safeguard, this might be an argument against holding that an absolute discretion has been conferred on the Secretary of State, but the argument is the other way when it is found, as it is in this regulation, that elaborate provision is made for the safeguarding of the detained person's interest. I refer to the constitution of advisory committees to which any person aggrieved by a detention order may make representations..."
1152. In the above, Lord Wright opined as under:-
1153. "What is involved is the liberty of the subject ... But that liberty is a liberty confined and controlled by law, whether common law or statute. It is, in Burke's words, a regulated freedom. It is not an abstract or absolute freedom. Parliament is supreme. It can enact extraordinary powers of interfering with person liberty ... But in the Constitution of this country there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the emergency.
1154. I confess that, notwithstanding all my prejudices in favour of upholding the liberty of the subject, I have come to a clear conclusion that the Courts below were right in refusing the particulars asked for ... I, ordinary administrative measures, the legislative practice of substituting for the jurisdiction of the Court that of a specially constituted Tribunal is well-established and increasingly frequent, particularly, since the decision of this House in Local Government Board v. Arlidge .. In Regulation 18-B the Home Secretary is expressly empowered to make a detention order in the circumstances specified. What are these circumstances? They are a belief or mental state of the minister. Except for the word 'reasonable', which I shall later discuss, there is no reference to anything but his personal belief, because I think that actual belief is implied by the words 'has reasonable cause to believe'. His belief is something personal to himself. The reasonable cause can only be material in so far as it is an element present to his mind which determines his own belief. The 'cause to believe' is part of the content of his mind. The matters specified, except hostile origin and, perhaps, hostile associations, are matters of opinion or judgment, not matters of fact. It is essentially a matter of expert and instructed conclusion or suspicion whether or not the acts in which the subject has been concerned were such as to be prejudicial to the public safety or defence of the realm; even more obviously is the belief or decision that by reason thereof it is necessary to exercise control over him a matter of executive discretion. It is clear that the control is preventive, not punitive, and that the action is not judicial, but executive... I cannot see any ground for holding that the performance of that duty is to be subject to the decision of a Judge, who cannot possibly have the full information on which the Minister has acted or appreciate the full importance in the national interest of what the information discloses. In these cases full legal evidence or proof is impossible, even if the Secretary does not claim that disclosure is against the public interest, a claim which must necessarily be made in practically every case, and a claim which a Judge necessarily has to admit. To a large extent the sources of information must be secret. Espionage must be met by counter-espionage. Even to refuse the disclosure may give dangerous hints to the enemy. A hearing in camera is, no doubt, permissible (in particular under section 6 of the Emergency Powers (Defense) Act, 1939), but a hearing in camera, if the public called for full disclosure, would not satisfy the public conscience, and in matters of this delicacy leakage must inevitably take place ... the Court is not merely an inappropriate tribunal, but one the jurisdiction of which is unworkable and even illusory in these cases. In my judgment, a Court of law could not have before it the information on which the Secretary acts, still less the background of state craft and national policy which is what must determine the action which he takes on it.
1155. I am confirmed in the opinion that the matter is one for executive discretion by other provisions in the regulation, in particular, those relating to the advisory committee or committees which are to be reconciled with the right of a State to employ the sovereign power to ensure orderly living 'without which Constitutional guarantees of civil liberties would be a mockery' ... The cases cited relate to the liberty of the subject, which has always been a matter of the very highest concern to the law. If a basis in opinion is sufficient to authorize the most grave interference with personal liberty by indefinite imprisonment, namely, imprisonment during the duration of a war, it can hardly be said that such a basis is insufficient to authorize interference with property. The rights of property, however, important they may be, have never been held in the Courts to be as sacred as the right of personal liberty. In my opinion, therefore, the objection taken to the validity of Regulation 3 as a basis for the operation of the other Regulations must be held to fail."
1156. In the said report, it was observed by Starke, J. as follows:
1157. "The Courts must not, of course, forget that those who are responsible for the national security must be the best judges of what the national security requires, ... The matter is entirely one for the discretion of the Executive, regardless apparently, except by the grace of the Executive, of obligations to creditors or others or even the interests of persons in property used by or in the interests of a declared body. Any house, premises, or place or part thereof occupied by a body prior to its declaration may, if the Minister so orders, be occupied so long as there is in the house, premises or place or part thereof any property which the Minister is satisfied belonged to, or was used by or on behalf of, or in the interests of, the body."
1158. In re: Michael Walsh, et al. (Supreme Court) (1942) I.R. 112), was also referred to, wherein it was observed as under:-
1159. "In our opinion this contention is based upon a misconception of the duties and functions of the Court. This emergency legislation is of a temporary character, passed for the purpose of securing the public safety and the preservation of the State during a time of national emergency. During such period the duty of determining what provisions are necessary for securing that object is vested in the Government, but every such provision must be laid before each House of the Oireachtas and may be annulled by a resolution passed by either House. Many of the arguments addressed to us would be more fittingly addressed to either House of the Oireachtas when considering the propriety of, and necessity for, the Order in question. They are not matters which can properly be relied upon in a Court of law."
1160. Reference was also made to Cases and Materials on international Law, Second Edition by Martin Dixon and Robert McCorquodale, in which at page 203 of the Book under the heading "United Nations Protection of Human Rights" sub heading "International Covenant on Civil and Political Rights", 1966 (999 UNTS 171, UKTS (1977) 6, Cmnd 6702, Article 4 has been provided for, in the following terms:-
1161. "Article 4(1). In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present. Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion, or social origin.
2. No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary on the date on which it terminates such derogation. "
1162. In the same book, under the heading 'Regional Human Rights Protection' subheading 'Convention for the Protection of Human Rights and Fundamental Freedoms' 1950 (ETS (1950)
5. UKTS (1950) 70, Article 10 has been provided for, which reads thus:-
1163. "Article 10:
(1) ??????? Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring their licensing of broadcasting, television or cinema enterprises.
(2) ??????? The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary .... page 247 of the said book, under 'American Convention on Human Rights',
1164. 1969 (1144 UNTS (1969) 123, 9 ILM 673 (1969) Article 27 has been provided for, which reads as follows:-
1165. "Article 27:
(1) ??????? In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, colour, sex, language, religion, or social origin . . . . . . . .. . . "
1166. The learned Attorney-General referred to 'Manual of Public International Law' by Max Sorensen, wherein at page 776 under the title ' 12, 13 War, Aggression, Armed Attack and Breach of Peace', it has been observed:-
1167. "(I) War is the traditional name for a contention between two or more States in which their armed forces are engaged in mutual acts of violence. The purpose of the war is to defeat the other party and to impose on it such terms of peace as the victor is prepared to grant. Violence and force applied during the war are regulated in the law of war (jus in bello), while the rights and duties arising between the belligerents and neutrals are the subject of the law of neutrality.
1168. The practice of States, which goes back to the times when war was a permissible means of solving international conflicts, distinguishes between the state of war and hostilities.
(II) Aggression which is armed is identical with armed attack .. .. ...But on the whole the category of aggression is broader than that of armed attack. Governments and writers often speak of psychological, economic or indirect aggression; these notions, if they are part of the terminology of international law, refer to activities that are different from armed attack' .. . . . . . . . . . . . . . . .. . . . . . . ... .
1169. 'Contemporary developments in the technology of war, in particular the existence of the existence of the ? thermo-nuclear weapons and the speed with which they can be used against an adversary, raise the delicate problem of the rights of States that are in danger of armed attack. Today, when long range missiles With nuclear warheads are able to devastate whole regions and countries, the difference between actual and imminent attack become- negligible . . . . .. . .' . " ??
1170. He referred to 'Fundamental Rights and Constitutional Remedies sub- Pakistan' by Syed Sharifuddin Pirzada, wherein at page 579, it has been observed thus:
1171. As matters stand now, two categories of war may be said to exist: defensive war and aggressive war. The former is clearly permissible. Aggressive war, on the other hand, has been asserted to be illegal, a position reinforced in the judgment of the National War Crimes Tribunal at Nuremberg when the Tribunal suggested that to initiate a war of aggression is the supreme international crime.
1172. As regards 'aggression' the term is itself of ambiguous import. The expression etymologically, has .common coot with gradum, and originally indicated approach, taking the accusative case (as in aggredior aliquem), and was used in the context of going or approaching some one for the purpose of conversing or asking counsel of. Even when it came to mean going to or against the other in a hostile manner, or falling on or attacking or assaulting him, the reference was rather to the openness or directness of the attacks. There is no authoritative definition of 'aggression' as applied to State action. Attempts were made in this behalf in Geneva Protocol, 1925, by Soviet Convention of 1933, Harvard Research in International Law and by International Law Commission, but it was found to be difficult to define 'aggression' by confining it in any short verbal formula.
1173. Whatever may be the definition of 'aggression' it seems, however, that unilateral acts of force committed by one State against another State without previous declaration of war constitute external aggression."
63. The learned Attorney-General further argued that the rationale behind the continuous providing for and retaining the emergency powers in the President is not far to seek, inasmuch as, in diversified facts of international and democratic scenario and, particularly, in the context of political and international disputes, the state of emergency can beset a count by suddenly without notice and unexpectedly. He submitted that the magnitude and suddenness of the emergency would call for an equally prompt, immediate and effective measure to defeat and thwart the ominous effects of the same, and that is why, the Constitutional provisions, regarding the invocation of emergency powers, confer the powers of Proclamation of Emergency on one person, who in the present case, is the President. He submitted that after necessary perusal of the material immediate action, as contemplated by the Constitution, was taken by the President by issuing the Proclamation of Emergency and the Order, dated 28th May, 1998 under Article 233, the same were placed before the joint sitting of the Parliament, which, after necessary deliberation, approved the same by separate Resolutions. He next submitted that the power to proclaim emergency rests solely with the President and is not subject to judicial review, as has been held in various judgments of the superior Courts.
64. In support of his above Contentions, the learned Attorney-General relied on Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313, wherein at page 328 paragraph 1, it was observed as under:-
1174. "What was said, therefore, was that the President was, in exercise of the powers conferred upon him by clause (1) of Article 30, pleased to issue the Proclamation. The emergency was not, therefore, confined only to meeting the imminent danger of being threatened by war, but the emergency was of a wider connotation which comprised the grounds mentioned in both of the said sub-clauses (a) and (b). The power of legislation derived by clause (4) was, thus, for the purpose of meeting the emergency declared under 'clause (1) of Article 30' and not any particular portion of that clause. This does not mean that the emergency was circumscribed by the words of the recital contained in the Proclamation. What had to be looked at was the operative portion of the Proclamation. Looked at in this way the power to legislate by Ordinance which accrued to the President thereby can tot be restricted to any particular portion of clause (1), Article 30. "
1175. In this regard, reference was also made to the case of M.M. Mansur Ali v. Arodhendu Shekhar Chatterjee PLD 1969 SC 37.
1176. Reference was made to the case of Muhammad Suleman .v. Islamic Republic of Pakistan PLD 1976 Lah. 1250, wherein at pages 1257, 1259, 1260 and 1261, paragraphs 2, 5, 6 and 7 respectively, it was observed as under:-
1177. "(2) ?????? In order to appreciate the contentions we have considered it necessary to refer to the facts and the circumstances under which the Proclamation of Emergency was issued. The Proclamation of Emergency was issued during the Martial Law Regime. On bearing satisfied that a grave emergency existed in which the security of Pakistan was threatened by the external aggression the then President issued it on 23rd of November, 1971. The emergency had not ceased when the Constitution of the Islamic Republic of Pakistan was enforced on the 14th August, 1973. It was provided in Article 280 that the Proclamation of Emergency 'shall be deemed to be a Proclamation of Emergency issued under Article 232, and for the purposes of clause (7) and clause (8) thereof to have been issued on the commencing day, and any law, mile or order made or purporting to have been made in pursuance of that Proclamation shall be deemed to have been validly made'."
1178. The Constitution in Part X (Articles 232 to 237) provides for three kinds of Emergencies or abnormal situations which call for a departure from the normal Governmental functions of the country viz., (a) the Emergency under Article 232 due to external or internal aggression (we may call it to be a National Emergency to distinguish it from the next category), (b) failure of the Constitutional machinery in a State (Article 234) and (c) Financial Emergency (Article 235). We are concerned here only with the National Emergency. The President, under Article 232, may issue a 'Proclamation of Emergency' at any time if he is satisfied that the security of Pakistan or any part thereof has been threatened by war, external aggression or by internal disturbances.
1179. The emergency, therefore, means the existence of the condition whereby the security of Pakistan or any part thereof is threatened by war, external aggression or internal disturbances and it exists when the President makes the Proclamation of Emergency. The actual occurrence of war or of any internal violence is not necessary to justify a Proclamation of Emergency by the President. The President may make such a Proclamation if he is satisfied that there is an imminent danger of such external or internal aggression. The Proclamation of Emergency has to be laid under clause (7) of Article 232 before a joint sitting which has to be 'summoned by the President to meet within thirty days of the Proclamation being issued' and under sub-clause (a) it 'shall cease to be in force at the expiration of two months unless before the expiration of that period it has been approved by a resolution of the joint sitting'. It was further provided in clause (b) (it has now been substituted by Constitution (Third Amendment) Act, 1975) that it 'may, by resolution of a joint sitting, be continued in force for a period not exceeding six months at a time'. The Proclamation was continued by a resolution of the joint sitting as was required under clause (b) of paragraph 7 and they were duly notified. Under the last resolution passed in this respect the Proclamation was to continue till 13th of February, 1975. But before that clause (b) of paragraph 7 was substituted by the Constitution (Third Amendment) Act (Act XXII of 1975) and it provided that the Proclamation 'shall, subject to the provisions of paragraph (a) cease to be in force upon a resolution disapproving the Proclamation being passed by the votes of the majority of the total membership of the two Houses in joint sitting'. The restriction of continuing the Proclamation by a resolution of joint sitting has been removed. It may now continue indefinitely until it is disapproved by a joint sitting by a resolution of the two Houses or the President terminates it.'
5. The Defence of Pakistan Ordinance, 1971 and the Defence of Pakistan Rules, 1971 were also deemed to have been validly made in pursuance of the Proclamation. Thus, on the day when the Constitution came into force there was the Proclamation of Emergency by the legal fiction. The Proclamation was given the Constitutional protection and, competence of the Court to decide, for, the declarations of war and peace are within the exclusive competence of the Executive Government of the country. In such matters the Courts speak in the same voice as the Chief Executive of the State, for, these are not questions which are amenable to judicial determination. No Court can give a declaration that a state of war has ceased to exist when the Chief Executive does not say so". The same view was taken in Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14). The contention is untenable. "
1180. "7. Learned counsel next contended that there was no concept of emergency in Islam, because the Musilm State is constantly at war with the anti-Islamic State and that being so the provisions about emergency, being un-Islamic, were invalid. He has not been able to substantiate this point from any Islamic Text and we are, therefore, not in a position to endorse it. Moreover, the provisions about the emergency are contained in the Constitution which was enacted by the validly constituted National Assembly. In State v. Zia-ur-Rehman (PLD 1973 SC 49): 'All organs of the State owe their origin to it, derive their powers therefrom and function under it subject to the limitation imposed by it. There can be no question, therefore, of any organ or functionary under the Constitution questioning the authority of the Constitution under which it is functioning or striking down any provision of the Constitution on the basis that it is repugnant to some other document, however important or sacred it might be, unless it also is a part of the Constitution itself." It was further held: '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 cannot claim to declare any of its provisions ultra vires or void. This will be no part of its function of interpretation. Therefore, 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.
1181. However, to say that there was perpetual emergency and then to contend that there was no concept of emergency in Islam is a contradiction in terms. On the contention that Muslim State is constantly at war with the anti-Islamic forces, no exception can be taken to the issuance of the Proclamation of Emergency, because if it is done it only reflects the existing conditions. In the event of emergency a unified action is necessary by reason of emergent circumstances internal or external, and calls for the exercise of extraordinary power by the Government to meet the situation. In case there is a perpetual emergency in an Islamic State, it will imply that the Government should necessarily be armed with extraordinary powers all the time, and if it were so, there will be no scope for Fundamental Rights in Islamic State, because it being in a state of perpetual emergency, the enforcement of Fundamental Rights is bound to fetter the powers of the Government to deal with the emergent situation. But it is inconceivable that there should be an Islamic State without the Fundamental Rights. We have, therefore, no hesitation in rejecting the contention of the counsel that Islamic State is in a perpetual emergency."
1182. He also relied on the case of Malik Ghulam Gilani v. Deputy Commissioner, Karachi (PLD 1969 Karachi 253), wherein at pages 255-B, 258-E and 260-F, it was observed thus:-
1183. "4. The second point raised by him needs no consideration because the satisfaction of the President as envisaged in Article 30 of the Constitution for promulgating an Order of Emergency is his subjective satisfaction and the grounds whether such a situation exists or not cannot be gone into by a Court of law. Cases reported in Emperor v. Benoari Lal (AIR 1945 PC 48) and Makhan Singh v. State of Punjab (AIR 1964 SC 381) may be referred on this question .
1184. ... ... .. .. ...The Constitution further provides that the President shall, when he is satisfied that the grounds on which he issued a Proclamation of Emergency have ceased to exist, revoke the Proclamation. It is the requirement of the Constitution that for the satisfaction as to the situations contemplated in Article 30(1) (a) or (b), and Article 30(2), it is the President alone who is the sole Judge. Now no sane person who was in Pakistan on the 6th of September, 1965, can say that Pakistan was not in grave danger on that day when faced with an undeclared war by the neighbouring power, namely, India. This Court has taken judicial notice of this fact in some pronouncements. In a recent case of the Division Bench of this Court 'Muhammad Akbar v. Deputy Commissioner, Lahore and another (PLD 1968 Lah. 579) in the words of Mushtaq Hussain, J.
1185. 'It cannot be forgotten that the Defence of Pakistan Ordinance and the Rules were promulgated at a time when Pakistan was faced with aggression by a neighbouring power at least six times stronger than itself, which had tried to sneak into its borders unannounced by trying to enact another Pearl Harbour.'
1186. In an earlier Division Bench case, in In re: Reference No. l of 1965 (PLD 1966 Kar. 160) my brother Illahi Bakhsh Khamisani. J. in the opening words of his judgment remarked:
1187. 'This is a reference, the necessity of which arose because of dastardly and unprovoked invasion of India upon sacred territory of Pakistan.'
1188. Surely the grave emergency due to war does not terminate with the end of hostilities. This view is not something new. Under the American Constitution in a case reported as Stewart v. Khan (II Wall 493), it was held that:-
1189. ??????????? 'the war power is not limited to victories in the field ? It carries with ? it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen, from its rise and progress.'
1190. In my opinion, therefore, the power granted by the Constitution to the President of Pakistan to issue Proclamation of Emergency or revoke. it is not open to judicial scrutiny by the Superior Courts in Pakistan, in the exercise of powers under Article 98 of the Constitution, for the President alone is the sole judge of the situation in either case."
1191. He next referred to the case of Hussain Naqi v. The District Magistrate, Lahore (PLD 1973 Lahore 164), wherein at page 178 I, J, it-was observed as follows:
1192. "Clause (8) of Article 139 is not only a validating provision. It has clearly laid down that the 'Proclamation of Emergency deemed to be a Proclamation of Emergency issued under this Article'. Doubtless, the Proclamation of Emergency issued on the 23rd of November, 1971, was not issued under Article 139. But by virtue of this provision, it is now 'deemed' to be a Proclamation under clause (1) of Article 139 of the Interim Constitution. The word 'deemed' is defined in Stroud's Judicial Dictionary as: 'When a thing is to be 'deemed' something else it is to be treated as that something else with the attendant consequences, but it is not that something else'."
1193. Reference was also made to the case of Niaz Ahmed Khan v. Province of Sindh (PLD 1977 Karachi 604), wherein it was observed at pages 623-E, 624-F and 625-G, as follows:-
1194. "In my opinion, therefore, the power granted by the Constitution to the President of Pakistan to issue Proclamation of Emergency or revoke is not open to judicial scrutiny by the superior Courts in Pakistan, in the exercise of powers under Article 98 of the Constitution, for the President alone is the sole Judge of the situation in either case."......
1195. In view of a clear embargo placed by the language of clause (2) of Article 236, there is also no escape from the conclusion that the validity of the Proclamation of Emergency issued by the President on 21st April, 1977 cannot the called in question ........
1196. Even otherwise, it has been held that the nature of the enabling provisions contained in Article 232 is such that the President is intended to be the sole judge of the existence of the situation calling for issue of Proclamation of Emergency."........
1197. In the case of emergency created as a result of war, the basic fibre of the State is at peril and the power to suspend fundamental rights of the citizens within the country is conceded to in almost all the countries. How long the Proclamation of Emergency should continue and what restrictions should be placed on the fundamental rights of the citizens during the pendency of the emergency, are matters which must inevitably be left to the Executive, .as has been done under the Constitution, because the Executive know best the requirements of the situation and the effect of the compulsive factors which operate during the period of great crisis. His Lordship Wright observed in the case of Liversidge v. Anderson (1942 AC 206): 'the safeguard of British liberty is in the good sense of the people and in the 'system of representative and responsible Government which has been evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary'."
1198. The case of Pir Sabir Shah (supra) was referred to contend that the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever. The relevant portion read thus:-
1199. " 16 .. . .. ... ... . . . .. It may further be pointed out that clause (2) of Article 48 of the Constitution provides that notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any, ground whatsoever. "
1200. The above clause is more wide in its nature as an ouster clause as it begins with the words 'Notwithstanding anything contained in clause (1)' and ends by employing the words 'on any ground whatsoever'. In spite of the fact that the above clause was so widely framed, the majority view of 10 to 1 in the above case held that this Court had jurisdiction to proceed with the matter and to examine the vires of the impugned action. It seems that by now in Pakistan it is well-settled principle of law that notwithstanding an ouster clause in the Constitution or in any other statute, the Courts have jurisdiction in the above three categories of cases.
17. In the present case, the Proclamation has been issued under Article 234, it has not been protected by any Article like Articles 281 and 270-A, which were the subject-matter of the above judgments in the cases of Zia-ur-Rehman, Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra) but the protection is sought under clause (2) of Article 236 of the Constitution, which is of general nature purporting to protect all Proclamations issued under Part X of the Constitution. I am, therefore, of the view that clause (2) of Article 236 will not cover a Proclamation which is without jurisdiction, coram non judice or mala fide and the superior Courts will have jurisdiction to examine a Proclamation from the above three jurisdictional legal aspects.
19. On the other hand, Mr. Sharifuddin Pirzada has urged, firstly, that the validity of the ? appointment of the Acting Governor cannot be questioned by the petitioner in the above proceedings inter alia on account of de facto doctrine and, secondly, the Governor's appointment is covered by clause (5) of Article 101 which was incorporated by President Order No. 14 of 1985 and amended by President Order No. 18 of 1985, which provides that 'The President may make such provision as he thinks fit for the discharge of the functions of the Governor in any contingency not provided for in this part'. "
1201. The learned Attorney-General referred some cases from Indian jurisdiction as to Proclamation of Emergency: In the case of Bhagat Singh v. Emperor (AIR 1931 P.C. 111), it was observed by Viscount Dunedin, J. that the Governor -General must be the sole Judge as to whether situation exists for imposition of emergency or not. The relevant observation is as under:-
1202. "This case does not fall within the strict rule that has been again and again laid down that this Board does not and will not act as Tribunal of criminal appeal, because here the objection, if it were good, would go to the root of the jurisdiction. But it is subject to the ordinary criterion which is applied to all petitions for special leave to, to wit, that leave will not be granted where upon the face of the application it is plain that on the merits it is bound to fail.
1203. Now the only case that is made here is that section 72, Government of India Act, did not authorize the Governor-General to make the order he did constituting a Special Tribunal for the trial of the offenders, who, having been convicted, are now petitioners here. Section 72 is as follows:-
1204. '72. The Governor-General may in cases of emergency make and promulgate Ordinances for the peace and good Government of British India or any part thereof, and any Ordinance so made shall for the space of not more than six months from its promulgation, have the like force of law as an act passed by the Indian Legislature; but the power of making Ordinance under this section is subject to the like restrictions, as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act.'
1205. The petitioners ask this Board to find that a state of emergency did not exist. That raises directly the question who is to be the judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action which is to be judged as such by someone. It is more than obvious that that someone must be the Governor-General and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance."
1206. In the case of Emperor v. Benoari Lal Sarnia (AIR (30) 1943 FC 36), the above rule had not been followed. It was observed at page 54 as under:-
1207. ... ... ... ... .. ..But there are two fundamental points of difference which have a material bearing on the present question: One is that by the very terms of section 72 of the Ninth Schedule to the Constitution Act, the operation of the Ordinance is limited to a period of six months (and even now it is only temporary, though the particular limit has been removed); and secondly, it is a avowedly the exercise of a special power intended to meet an emergency. These two circumstances differentiating legislation by Ordinance from normal legislation afford ground for doubting the applicability of the principle of (1878) 3 A.C. 889 to Ordinances. Further, it is only consistent with the special character of this kind of law making that the responsibility for it should have been laid on the Governor-General whose personal judgment and discretion must be taken to be a very important factor. It may be that his position too cannot be described as that of an the High Court that the Court which purported to try and convict the respondents had no jurisdiction to do so."
1208. However, in the case of Emperor v. Benoari Lal Sarnia AIR (32) 1945 Privy Council 48), wherein the above dictum had been overruled, it- was observed as under:-
1209. "With the greatest respect to these eminent Judges, their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise and well-framed legislation it is better if circumstances permit to frame a statute in such a way that the offender may know in advance before what Court he will be brought if he is charged with a given crime; but that is a question of policy, not of law. There is nothing of which their Lordships are aware in the Indian Constitution to render invalid a statute, whether passed by the Central Legislature or under the Governor-General's emergency powers, which does not accord with this principle. Rowland, J., at the beginning of his dissenting judgment, collects a number of striking quotations from previous judgments delivered in the Privy Council as to the proper rule of construction. Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used. The learned Judges who were in the majority in the Federal Court would presumably not contest this proposition, and their Lordships rather understand their view to be based on the conception that there is something underlying the written Constitution of India which debars the Executive Authority, though specially authorized by the statute or Ordinance to do so, from giving directions after the accused has been arrested and charged with crime as to the choice of Court which is to try him. Their Lordships are unable to find that any such Constitutional limitation is imposed. Indeed, Rowland, J. points out that if it were held that where two sets of Courts exist side by side power cannot be delegated to pass an order directing that a case shall come before the Special Court and not before the Court under the Code, this would throw doubt on a long course of legislation in India where this very thing is enacted. The learned Judge cites 13 instances, and, in addition to these, refers to the discretion conferred by the Army Act and by the Air Force Act upon the prescribed authority to decide in a particular case, where a Criminal Court and a Court Martial would both have jurisdiction, before which Court the accused shall be brought for trial. There is not, of course, the slightest doubt that the Parliament of Westminster could validly enact that the choice of Courts should rest with an Executive Authority, and their Lordships are unable to discover any valid reason why the same discretion should not be conferred in India by the law-making authority, whether that authority is the Legislature or the Governor-General, as an exercise of the discretion conferred on the authority to make laws for the peace, order, and good Government of India. Their Lordships will humbly advise His Majesty that the appeal should be allowed. The judgment of the Federal Court must be set aside and the Ordinance 2 of 1942 declared not to be ultra vires."
1210. Reference was next made to the case of State of Bombay v. Virkumar Gulabchand Shah (AIR 1952 SC 335), wherein at page 337 paragraph 18, it was observed thus:-
1211. "It is also perhaps relevant to note that the term which was under consideration in those cases occurred in a war-time measure, namely a Proclamation promulgated on 4-8-1914, the day on which the first word war started. There is authority for the view that war-time measures, which often have to be enacted hastily to meet a grave pressing national emergency in which the very existence of the State is at stake, should be construed more liberally in favour of the Crown or the State than peacetime legislation. The only assistance I can derive from this case is that the term 'foodstuffs' is wide enough to cover matter which would not normally fall within the definition of what I have called food proper. I do not think it is helpful in deciding whether the wider or the narrower definition should be employed here because the circumstances and background are so different."
1212. He further referred to Union of India v. Bhanudas Krishna Gawde (1977) 1 Supreme Court Cases 834), wherein at page 852, paragraph 12, it was observed as follows:-
1213. "Thus, the foregoing discussion makes two things perfectly clear:--(1) that Article 359(1) (which makes no distinction between the threat to the security of India by war or external aggression or internal disturbance) is wider in scope than Article 358, (2) that it is not open to anyone either to challenge the validity of any law or any executive action on the ground of violation of a fundamental right specified in the Presidential Order promulgated under Article 359 (1) of the Constitution. It would be apposite at this stage to mention that in England in Liversidge v. Anderson and Greene v. Secretary of State for Home Affairs and in India in Sree Mohan Chowdhary v. Chief Commissioner, Union Territory of Tripura and Makhan Singh v. State of Punjab the right of any person to challenge any executive action taken during emergency on the ground that it was arbitrary or unlawful has been negatived. In the Liversidege's case the following memorable observations made by the House of Lords in the King v. Halliday, Ex parte Zadig were referred to and relied upon:
1214. 'However precious the personal liberty of the subject may be there is something for which it may well be to some extent, sacrificed by legal enactment namely, national success in the war or escape from national plunder or enslavement. Liberty is itself the gift of the law and may by the law be forfeited or abridged'."
1215. At page 856, paragraph 24, of the same report, it has been observed that doctrine of legality in peace time is not relevant in interpreting emergency legislation. Besides, strict rule of reasonableness is not to be applied. Relevant paragraph reads thus:-
1216. "The main contention advanced on behalf of the detenus that the Presidential Orders, dated June 27, 1975 and January 8, 1976 do not bar the Court from examining the legality or vires or reasonableness of the Maharashtra conditions of Detention Order, 1974 and that what is sought by means of the aforesaid petitions filed by or on their behalf is not the enforcement of the right to personal liberty conferred by Articles 14, 19, 21 and 22 of the Constitution but a redress of the complaint against illegality or ultra vires or unreasonableness of the Maharashtra Conditions of Detention Order, 1974 which imposes unwarranted constraints on them and does not provide them with facilities to which even the ordinary prisoners are entitled is totally misconceived. It overlooks the well-recognized canon of construction that the doctrines of legality and vires which are sacrosanct in times of peace have no relevant in regard to a legislative or an executive measure taken in times of emergency in the interest of the security of the State. It also ignores the well-settled position that in times of emergency when the security of, the State is of utmost importance, the subordinate legislation has to be benevolently construed and the strict yardstick of reasonableness cannot be appropriately applied. It also ignores the stark reality that the Presidential Orders, dated June 27, 1975 and January 8, 1976 impose blanket bans on any and every judicial enquiry or investigation into the validity of an order depriving a person of his personal liberty no matter whether it stems from the initial order directing his detention or from an order laying down the conditions of his detention. It has to be borne in mind that the rule of law during the emergency is no other than what is contained in Chapter XVIII of the Constitution which is the positive and transcendental law. The following observations made by my Lord the Chief Justice in this connection in A.D.M. Jabalpur v. Shivakant Shukla's case (supra) are worth perusing:-
1217. "The Constitution is the mandate. The Constitution is the rule of law... The rule of law is not a mere catchword or, incantation. The rule of law is not a law of nature consistent and invariable at all times and in all circumstances .... The suspension of right to enforce fundamental right has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency. There cannot be any rule of a law other than the Constitutional rule of law. There cannot be any pre-Constitution or post-Constitution rule of law which can run ? counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the Constitutional provi4ons during the times of emergency."
1218. At page 589, paragraph 36, it was concluded as follows:-
1219. "We are, therefore, clearly of opinion that the aforesaid writ petitions were not maintainable and the High Courts of Bombay and Karanataka were clearly in error in passing the impugned directions which are not warranted by any relevant law including the law relating to preventive detention of the kind with which we are concerned in the present cases. The detenus or their relations may, if so advised, approach the appropriate Governments or other competent administrative authorities invoking their powers under section 5 read with section 12 of the Act or other relevant provisions thereof."
1220. In the case of Muhammad, Yaqub, etc. v. State of Jammu and Kashmir (AIR 1968 SC 765), the Order of the President suspending the fundamental rights, was challenged. The relevant portion of the report reads thus:-
1221. "2. The main attack of the petitioners is on the order of the President passed on November 3, 1962 as amended on November 11, 1962, under Article 359 (1) of the Constitution. By this order the President declared that the right to move any Court for the enforcement of the fundamental rights conferred by Articles '14, 21 and 22 of the Constitution would remain suspended for the period during which the Proclamation of Emergency issued under Article 352 (1), was in force, if any person was deprived of such right under the Defence of India Ordinance (No.4 of 1962) or any rule or order made thereunder. The argument in support is put this way. The President is an 'authority' within the meaning of Article 12 and therefore is comprised within the definition of the word 'State' and the order passed under Article 359 is a law within the meaning of Article 13(2) of the Constitution. Consequently an order passed by the President under Article 359 is liable to be tested on the anvil of the fundamental rights enshrined in ? Part III of the Constitution. Secondly, it is urged that an order passed under Article 359 is made in the context of the Emergency, and therefore, enforcement of only such fundamental rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency. In consequence, the President can only suspend the enforcement of fundamental rights under Article 22 and Article 31(2) under an order passed under Article 359 and no others. Thirdly, it is urged that even if the President can suspend the enforcement of any fundamental right, the order passed can still be tested under the very fundamental right enforcement of which has been suspended. Fourthly, it is urged that an order passed under Article 359 can in any case be challenged under Article 14, and if so, the order passed in the present case is violative of Article 14 because some persons can be detained under the Defence of India Act. 51 of 1962 (hereinafter referred to as the Act) and the Rules while others can be detained under the Preventive Detention Act. As the Act and the Rules give more drastic powers for detention as compared to the powers conferred by the Preventive Detention Act, there is discrimination for there is no indication as to when detention should be made under the Act and the Rules and when under the arbitrary discretion of the executive. Fifthly, it is urged that in view of the language of the order under Article 359, there should have been an express provision in the Act and the Rules to the effect that enforcement of fundamental rights under Articles 14, 21, and 22 was suspended and in the absence of such an express provision, the Presidential Order under Article 359 cannot stand in the way of the detention order being tested under Part III of the Constitution. Sixthly, it is urged that Article 22(5) provides that grounds of detention should be furnished to a detenu and the order or the President did not do away with the necessity of furnishing the grounds. "
1222. At pages 768 and 769 at paragraphs 6, 7, and 9, it was observed as under:-
1223. "6. It will be seen from the terms of Article 359 that it gives categorical powers to the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III, It is for the President to decide the enforcement of which of the fundamental rights should be suspended during the operation of the Proclamation of Emergency. There is nothing in Article 359 which in any way limits the power of the President to suspend the enforcement of any of the fundamental rights conferred by Part III. It is to our mind quite clear that the President has the power to suspend the enforcement of any of the fundamental rights conferred by Part III and there is nothing thereunder which makes any distinction between one fundamental right or another.
1224. As Article 359 stands, it seems to us, it clearly envisages that once a Proclamation of Emergency has been issued, the security of India or any part of the territory thereof may require that the President should suspend the enforcement of any of the fundamental rights conferred by Part III, There is in our opinion no scope for inquiry into the question whether the fundamental right the enforcement of which the President has suspended under Article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance, for Article 359 posits that it may be necessary for the President to suspend any of the fundamental rights in Part III for the sake of the security of India. There is, thus, a basic assumption in Article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights conferred by Part III in the interest of the security of India. If he considers that necessary, it is unnecessary in the face of that basic assumption to inquire whether enforcement of a particular fundamental right suspended by the President has anything to do with the security of India, for that is implicit in Article 359. It follows, therefore, that it is open to the President to suspend the enforcement of any of fundamental rights conferred by Part III by an order under Article 359 and this Article shows that wherever such suspension is made it is in the interest of the security of India and no further proof of it is necessary.
7. This brings us to the main ground raised on behalf of the petitioner that an order under Article 359 is a law made by the State within the meaning of Article 13 (2) and has therefore to be tested under Part III of the Constitution. We may assume for present purposes that the President is comprised within the word 'State' in Article 12. We may also assume that the order made by the President under Article 359 is a law in its widest sense. The question, however, is whether such an order can be considered to be a law for the purpose of Article 12(2) and tested thereunder. Article 13 (2) and Article 359 being parts of the same Constitution stand on an equal footing and the two provisions have to be read harmoniously in order that the intention behind Article 359 is carried out and it is not destroyed altogether by Article 13(2). It follows that though an order under Article 359 may be assumed to be law in its widest sense, cannot be law within the meaning of Article 13(2), for if that were so, Article 359 would be made nugatory. The Constitution through Article 359 says that the President may suspend the enforcement of any of the fundamental rights in Part III where a Proclamation of Emergency is in force and that means that during the period of Emergency the fundamental rights, enforcement of which is suspended, cannot be enforced. If the order is a law within the meaning of Article 13(2), the result would be that though the order says that the enforcement of a particular fundamental right is suspended during the period of emergency the order can still be tested with the aid of Article 13(2) on the anvil of the same fundamental right the enforcement of which it suspends. That would in our opinion result in making Article 359 completely nugatory for then a declaration made thereunder that the enforcement of certain fundamental rights is suspended during the period of Emergency would have no meaning whatsoever. Therefore, applying the principle of harmonious construction we are of opinion that an order passed under Article 359 cannot be law for the purpose of Article 13(2), assuming it to be law in its widest sense. It follows therefore that an order under Article 359 derives its force from Article 359 itself and takes effect in accordance with its tenor and cannot be affected by Article 13(2) and cannot be tested under any of the provisions of Part III of the Constitution which it suspends.
9. We must say with greatest respect that it is rather difficult to understand how an order under Article 359 which suspends the enforcement of a fundamental right can be tested under that very fundamental right. It is true that there is a distinction between Article 358 and Article 359(1). Article 358 by its own force suspends the fundamental rights guaranteed by Article 19; Article 359(1) on the other hand does not suspend any fundamental right of its own force but it gives power to the President to suspend the enforcement of any fundamental rights during the period of Emergency. But that cannot mean that an order passed under Article 359(1) suspending the enforcement of a particular fundamental right has still to be tested under the very fundamental right which it suspends. That would in our opinion be arguing in a circle and make Article 359 completely nugatory. It seems that the majority in Ghulam Sarwar's case, (1967) 2 SCR 271=(AIR 1967 SC 1335) was also conscious of the fact that the reasoning on which it came to the conclusion that an order made under Article 359 could be tested under Article 14, though it suspended that Article, was open to the criticism that it was an argument in a circle. The argument was, however, met by making a distinction between the order and the effect of that order and it was observed that if the order did not violate Article 14 it could validly take away the right to enforce the fundamental right under Article 14, With greatest respect it is difficult to appreciate this reasoning and the distinction on which it is based. It seems to us that if Article 359 is to have any meaning at all and is not to be wiped out from the Constitution an order passed thereunder suspending a fundamental right cannot possibly be tested under that very fundamental right which it suspends. If that were permissible no order under Article 359 could really be passed. If Article 359 is not to be rendered nugatory, it must be held that an order passed thereunder cannot be tested under the very fundamental right the enforcement of which it suspends. We must therefore respectfully differ from the view taken in Ghulam Sarwar's case (1967) 2 SCR 271; (AIR 1967 SC 1335), and hold that an order passed under Article 359(1) cannot be tested with the aid of Article 13(2) under that very fundamental right the enforcement of which it suspends. There is, therefore, no force in the first point raised on behalf of the petitioners."
1225. Reference was made to P.L. Lakhanpal v. Union of India (AIR 1967 SC 243), wherein at pages 244 and 245, at paragraphs 3 and 4 it was observed thus:-
1226. "It was next said that the Proclamation of Emergency made by the President under Article 352 of the Constitution which prevented the Act from being illegal, was not in terms of the Article as it did not state that the President was satisfied that a grave emergency existed. It is true that the Proclamation did not do that. It stated.
1227. ' In exercise of the powers conferred by clause (1) of Article 352 of the Constitution, I, Sarvapalli Radhakrishnan, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression.'
1228. ' We, however, find nothing in the Article which requires the Proclamation to state the satisfaction of the President about the emergency. Article 352(1) reads:
1229. ' If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect'.
1230. 'The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words 'to that effect' can have no other meaning. The power to make the declaration can no doubt be exercised only when the President is satisfied about the emergency, but we do not see that the Article requires the condition precedent for the exercise of the power, that is, the President's satisfaction, to be stated in the declaration. The declaration shows that the President must have satisfied himself about the existence of the emergency for in these matters the rule that official acts are presumed to have been properly performed applies and there is nothing proved by the petitioner to displace that presumption. We were referred to certain other provisions, viz, Article 311 (2) of the Constitution and Rule 30(1)(b) of the Rules and it was c6ntended that these provisions require the satisfaction to be stated. It is unnecessary to decide whether they so require. Even if they did, the requirement of the statement of the President's satisfaction in the present case has to be decided on the terms of Article 352 alone. We have said that this Article does not gent' or 'elegate' but the very conception underlying the Ordinance making power so connects it with the personal judgment and discretion of the Governor General that the objection against delegation to subordinate executive authorities of any matter of principle is even more serious in this case."
1231. At page 55 of the report, it was observed thus:-
1232. ... ... ... ...We are also of the opinion that such executive orders cannot in law have any such effect and that sections 5, 10 and 16 of the Ordinance are open to objection as having left the exercise of the power thereby conferred on executive officers to their absolute and unrestricted discretion, without any legislative provision or direction laying down the policy or conditions with reference to which that power is 'to be exercised. The powers of the High Court, though in form taken away by section 26 of the Ordinance, are in fact only taken away by the order of the executive officer, because it is only on such order or direction being given that any case becomes a proceeding before a Special Court for the purpose of section 26. We accordingly agree with contain any such requirement. It is of interest to point out here that the petitioner stated in his petition that he extended his full support to the Government on the Proclamation of Emergency. Obviously he could not have done so if he had any doubt about the legality of the Proclamation. Then it was said that the Proclamation should have stated the direction from which the external aggression which it mentioned was apprehended. We find nothing in the Article to require the Proclamation to state this. The Proclamation was issued on October 26, 1962 when, it is well-known, India's integrity was threatened by China.
1233. '4. It was also stated that the continuance of emergency which was declared over three years ago is a fraud on the Constitution. We were told that the President in his address to the Parliament in February this year did not state that the emergency continued to exist. The President's address has not been produced and we do not know what it contained. However, that may be, Article 352 itself by clause (2) provides that a Proclamation issued under clause (1) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation. In this connection it was also said that external aggression means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also fail on the ground which we have just mentioned."
65. The learned Attorney-General next contended with vehemence that Proclamation of Emergency is based on the subjective satisfaction of the President under Article 232(1) of the Constitution and that the President can by order declare the right to move any Court for enforcement of the Fundamental Rights, to be suspended during emergency under Article ?.33(2) of the Constitution. He submitted that since the Proclamation of Emergency and the subsequent order had to be laid before the joint sitting of the Parliament as provided in Article 232(7) and Article 233(3) of the Constitution, the same were placed before the joint sitting of the Parliament and, after a lengthy debate they were approved by the two separate Resolutions in its joint sitting held on 10th June, 1998. He submitted that the Resolutions of the Parliament, regarding the Proclamation of Emergency and the Order, dated 28-5-1998. have been sanctified by putting the seal of approval by the Representatives of the people on the action of the President. He further emphasised that the 'satisfaction' of the President is his exclusive prerogative, which, when approved by the Resolutions of the joint sitting of the Parliament, acquires sanctification of the will of the people, therefore, no individual has any locus standi to challenge the same. He further submitted that no mala fides can be imputed to Legislature/Parliament as held in several judgments by the superior Courts.
66. Syed Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing on behalf of the Federation argued that the Court has no jurisdiction to hear the case against the Presidential Proclamation of Emergency. He argued that the General Assembly and Security Council of the United Nations Organization had admitted that any country could impose emergency in the presence of threat of war or any foreign aggression. He contended that under the United Nations Charter of 1945, no country could declare war against other, as such the President Ayub's declaration of war in public address in 1965 had not been accepted internationally.
67. The learned counsel next argued that for promulgating emergency in the country only threat of war is not necessary and that the same could be imposed due to any threat of foreign aggression as well. He submitted that Iraq had imposed emergency in 1981 after Israel attacked its nuclear installations, though after the attack there was no such situation of war between the two countries but Iraq still persisted with the emergency.
68. He further argued that the President is the only person who under the Constitution of Pakistan can judge the situation and promulgate the emergency and he did so after completely satisfying himself by the documents produced before him by the Government for his satisfaction.
69. He argued that in the present situation, when India had handed over the matter of Kashmir to the Home Minister, Mr. Advani, a fundamentalist, Pakistan was facing the threat of aggression, therefore, the emergency has been imposed only for the security of the country, in that, Pakistan could not trust India as she had already fixed missiles on the border with Pakistan in 1984.
70. He next argued that assuming that this Court has power to review the imposition of emergency, the international principles recognise that the Court ought to exercise self-restraint in this regard, speaking in one voice with the Executive in the larger interest of national security, which, according to the independent opinion of the Government, is at risk from external aggression.
71. Mr. Pirzada next argued that present Proclamation was made when national security was at stake in the wake of Indian nuclear tests, statements of the Indian Minister, Mr. Advani, clearly exhibit the aggressive designs and threat to our national security. He argued that the emergency can arise out of the threat of aggression even though actual aggression that not taken place; nevertheless the situation by all means connotes the same.
72. Lastly, it was submitted that a judicial order to the Executive could be passed to revoke the Proclamation of emergency if the material present against the same satisfied the Court, on solid grounds that the circumstances did not warrant to proclaim emergency and that the Court itself could not revoke the same.
73. There is great force in the submissions made by Syed Shariguddin Pirzada that, in the present situation, when India had handed over the matter of Kashmir to its Home Minister, Mr. Advani, a fundamentalist, Pakistan was facing the threat of aggression, therefore, the emergency has been imposed only for the security of the country, in that, Pakistan could not trust India as she had already fixed missiles on the border with Pakistan in 1984.
74. Alternatively, Mr. Pirzada rightly argued that assuming that this Court has power to review the imposition of emergency, the international principles recognise that the Court ought to exercise self-restraint in this regard, speaking in one voice with the Executive in the larger interest of national security, which, according to independent opinion of the Government, is at risk from external aggression. In my view, this principle is applicable in the facts and circumstances of the present case subject to re-examination/review by this Court, if the circumstances so warrant at any stage.
75. I am in full agreement with Mr. Pirzada that the Proclamation of Emergency was made when national security was at stake in the wake of Indian nuclear tests and the statements of the Indian Minister, Mr. Advani, clearly exhibited the aggressive designs and threat to our national security.
76. The submissions made by Syed Sharifuddin Pirzada as to validity and justification of the Proclamation of Emergency is supported by the rule laid down in Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738), wherein at page 792, paragraph 59, it has been observed:-
1234. "It was also urged by Mr. Sharifuddin Pirzada that Emergency Provisions necessitate taking of immediate action by the President, and, therefore, he is the sole judge to decide the question, whether a Proclamation is to be issued or not. In support of his submission he has referred to the case of Bhagat Singh v. Emperor (Viscount Bunedin) AIR 1931 PC p. l l l and the case of Emperor v. Benoari Lal AIR 1945 PC p. 48.
1235. The above reports do support Mr. Sharifiuddin Pirzada's above submission. However, in this regard it may be pertinent to point out that though Article 234 of the Constitution is contained in Part X of the Constitution, which relates to the Emergency Provisions, but it cannot be equated with Article 232 which can be invoked when the President is satisfied that a grave emergency exists in which the security of the country or part thereof is threatened by war or external aggression or by internal disturbances beyond the power of the Provincial Government to control. The invocation of the above Article even entails suspension of the Fundamental rights under Article 233. Whereas, in order to press into service Article 234, it is not necessary that there should exist a grave emergency of the nature referred to in Article 232 but the same cart be invoked in aid if there is temporary Constitutional deadlock. The above two Privy Council cases relate to emergency action during the war period and, therefore, are distinguishable."
1236. He referred t4 "Cases and Materials on International Law" by D.J. Harris, Fifth Edition, 1998, wherein a 'Resolution on the Definition of Aggression 1974' has been mentioned, in which, under Article 1 thereof, aggression has been defined in the following words:-
1237. "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the ? United Nations, as set out in this Definition "
1238. In the same Book the case of Duff Development Co. v. Government of Kelantan (1924) A.C. 797, HL.), has been referred wherein Lord Sumner based the conclusive nature of certificates upon the "best evidence" rule and, to a lesser degree, the "one voice" doctrine, i.e. the doctrine that the Courts and the executive should follow the same approach on matters of foreign affairs ... ... .?????????????????????????????????????????????????????
1239. The learned counsel then proceeded to refer also 'War, Aggression and Self-Defense' by Yoram Dinstein, Second Edition, wherein the expressions mentioned on the title of the book have been explained in detail in the following words:-
1240. "A. War in the Technical Sense
1241. War in the technical sense starts with a declaration of war. According to Article 1 of Hague Convention (No. III of 1907) Relative to the Commencement of Hostilities:
1242. ????????????????
1243. ????????????????..
1244. "Even when a declaration of war is published, in many instances this is done after the first strike, so that the act constitutes no more than a recognition of a state of war already in progress; occasionally, the declaration is 'issued by the State under attack, and it merely records that the enemy has launched war. of course, a post-attack declaration of war (by either party) is not in accordance with Hague Convention No.111, ,,
1245. 'B. The Definition of Aggression
1246. "The General Assembly consensus Definition of Aggression, adopted in 1974, relates to 'aggression' in a generic way. The above-mentioned Article 5(2) differentiates between aggression (which 'gives rise to international responsibility') and war of aggression (which 'is a crime against international peace'). The drafters of the definition thereby signalled clearly that not every act of aggression constitutes a crime against peace: only war of aggression does. An act of aggression may trigger war. However, this is not a foregone conclusion, since aggression may also take the form of an act short of war. When an aggressive act short of war is committed, although a violation of international law occurs, no crime against peace is perpetrated. "
1247. ?????????.
1248. ?????????.
1249. 'The enumeration of specific acts of aggression appears in Article 3. Under the Article, the following amount to acts aggression ('regardless of a declaration of war'):
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however, temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.
(c) The blockade of the parts or coasts of a State by the armed forces of another State.
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein."
1250. ?????????????
1251. ????????????.
1252. Article 16(2) of the 1991 Draft Code not only slates the threat of aggression as a crime, but defines it as follows:-
1253. 'Threat of aggression consists of declarations, communications, demonstrations of force or any other measure which would give good reason to the Government of a State to believe that aggression is being seriously contemplated against that State'.
1254. The use of the phrase 'seriously contemplated' appears to go even beyond actual threats. Indeed, the Commission's commentary adds:
1255. "As to its concrete manifestations, the threat of aggression could take the form of intimidation, troop concentrations or military manoeuvres near another State's borders, or mobilization for the purpose of exerting pressure on a State to make it yield to demands."
1256. "C. Self-Defence as an 'Inherent' Right.
1257. "Article 51 of the UN Charter pronounces self-defence to be an 'inherent' right. In the French text of the Article, the phrase 'inherent right' is rendered 'droit natural. The choice of words has overtones of jus naturale, which appears to be the fount of the right of self-defence, However, a reference to self-defence as a 'natural right' or a right generated by 'natural law', is unwarranted. 1t may be conceived as an anachronistic residue from an era in which international law was dominated by ecclesiastical doctrines. At the present time, there is not much faith in transcendental truth professed to be derived from nature. A legal right is an interest protected by law, and it must be validated within the framework of a legal system. Self-defence as an international legal right, must be proved to exist within the compass of positive international law.
1258. ??????..
1259. ???????
1260. "It is would-be absurd to require that the defending State should sustain and absorb a devastating (perhaps a fatal) blow, only to prove an immaculate conception of self-defence. As Sir Humphrey Waldock phrased it:
1261. 'Where there is convincing evidence not merely of threats and potential danger but of an attack being actually mounted, then an armed attack may be said to have begun to occur, though it has not passed the frontier'."
1262. ????????.
1263. An indepth study of the background may be required before a decision is made regarding the classification of the first shot as anticipatory or interceptive. Thus, in the 'Six Days War' of June, 1967, Israel was the first to open fire But when all of the measures taken by Egypt (especially the peremptory ejection of the United Nations Emergency Force from the Gaza Strip and the Sinai Peninsula; the closure of the Straits of Tiran; the unprecedented build-up of Egyptian forces along
1264. Israel's borders; and constant sabre-rattling statements about the impending fighting) were assessed in the aggregate, it seemed to be crystal clear that Egypt was bent on an armed attack, and the sole question was not whether war would materialize but when."
1265. ? The invocation of the right of self-defence must be weighed on ? the basis of the information available (and reasonably interpreted) at the moment of action, without the benefit of post factum wisdom.'"
1266. "A description of a human being under attack as having 'no moment for deliberation' would be accurate. But when such an expression is applied to a State confronted with an armed attack, it is a hyperbolic statement. Front-line officers in the target country must report to, and receive instructions from, headquarters. The high command is not inclined to embark upon full-scale hostilities, in response to an isolated armed attack, without some deliberation. When there is no military Junta in power, the civilian Government will have to give a green light to the armed forces. In all, moving forward to a war of self-defence is a time consuming process, especially in a democracy where the wheels of Government grind slowly ....
1267. Secondly, even when the interval between an armed attack and a recourse to war of self-defence is longer than usual, the war may still be legitimate if the delay is warranted by circumstances. Suppose that Numidian troops forcibly occupy a part of the territory of Ruritania. Instead of promptly employing counter-force, Ruritania elects to give amicable negotiations a try (thus meeting the aforementioned condition of necessity). If the negotiations fail, and Ruritania then resorts to war, the action ought to be regarded as self-defense notwithstanding the lapse of time. The Gulf War shows that the use of counter-force in selfdefence can begin almost half a year after the armed attack. The condition of immediacy was not transgressed, inasmuch as persistent attempts to resolve the conflict amicably were foiled by Iraqi obduracy. Claims that the option of self-defence existed in early August 1990 but expired a few months later are simply fallacious."
1268. Reference was then made to 'International Law', Fourth Edition by Malcolm N. Shaw to contend that matters that fall within the competence of the Executive Branch of the Government are not justiciable before the Courts, therefore, the Courts should observe judicial restraint or abstention in such matters. The relevant portion reads thus:-
1269. "An issue is justiciable basically if it can be tried according to law. It would, therefore, follow that matters that fall within the competence of the Executive branch of Government are not justiciable before the Courts. Accordingly, the test as to whether a matter is or is not justiciable involves an illumination of that grey area where the spheres of executive and judiciary merge and overlap. One important aspect of justiciability is the doctrine of act of State. An act of State generally relates to the activities of the executive in relations with other States, but in the context of international law and municipal Courts it refers particularly to the doctrine that no State can exercise jurisdiction over another State. As such it is based upon the principles of the sovereignty and equality of States.
1270. The concept of non justiciability applies with regard to both domestic and foreign executive acts. In the former case, the Courts will refuse to adjudicate upon an exercise of sovereign power, such as making war and peace, making international treaties or ceding territory. As far as the latter instance is concerned. Lord Wilberforce declared in Buttes Gas and Oil Co. v. Hammer (1982) AC 888.
1271. "There exists in English law a general principle that the Courts will not adjudicate upon the transactions of foreign sovereign states ... ...it seems desirable to consider this principle ... ...not as a variety of 'act of State' but one for judicial restraint or abstention."
1272. To further reinforce his standpoint as to the powers of the President to issue Proclamation of Emergency and to suspend the fundamental rights of the citizens, the learned counsel further relied on Stephen Kalong Ningkan v,. Government of Malaysia (1968 (2) MLJ 238), wherein it was observed:-
1273. "The first submission was met on behalf of the respondent, the Government of Malaysia, in two ways: (1) Issue was joined on the allegation that there had been no true or sufficient emergency within the meaning of Article 150; and (2) it was contended that that allegation was not justiciable, as the Proclamation of Emergency was conclusive and not assailable on any ground. It will be convenient to consider these points in the order sated and on the assumption, when dealing with point (1), that the issue to which it relates is in law justiciable.
1274. Making this assumption, their Lordships can entertain no doubt that the onus was on the appellant to prove the allegations on which his first submission depended. In the circumstances such as those with which this appeal is concerned, the onus of proof on anyone challenging a Proclamation of Emergency may well be heavy and difficult to discharge since the policies followed and the steps taken by the responsible Government may be founded on information and apprehensions which are not known to, and cannot always be made known to, those who seek to impugn what has been done. Considerations of this nature, however, can seldom remove or shift the onus and in the present case it was not suggested that it rested elsewhere than on the appellant. The sole question on this branch of the argument was whether he had established his assertions.
1275. In the opinion of their Lordships the appellant failed to do so. It may be accepted, in the absence of anything to show the contrary, that, as he alleged, there was no actual or threatened outbreak of violence or breach of the peace in Sarawak at any time relevant to the Proclamation of Emergency. But the word 'emergency' as used in Article 150(1) cannot be confined to the unlawful use or threat of force in any of its manifestations. While Article 149 of the Federal Constitution is aimed at stopping or preventing subversion of that character, the terms of Article 150 are much less restricted. Although an 'emergency' to be within that Article must be not only gave but such as to threaten the security or economic life of the Federation or any part of it, ... .. ..' As Lord Dunedin observed when delivering the judgment of the Board in Bhagat Singh and others v. The King-Emperor: A state of emergency is something that does not permit of any exact definition: it connotes a state of matters calling for drastic action ?????? "
1276. ?????????.
1277. It is not for their Lordships to criticise or comment upon the wisdom or expediency of the steps taken by the Government of Malaysia in dealing with the Constitutional situation which had occurred in Sarawak, or to enquire whether that situation could itself have been avoided by a different approach. But, taking the position as it was after Harley, J. had delivered judgment in September, 1966, they can find, in the material presented, no ground for holding that the respondent Government was acting erroneously or in any way mala fide in taking the view that there was a Constitutional crises in Sarawak, that it involved or threatened breakdown of stable Government, and amounted to an emergency calling for immediate action. Nor can their Lordships find any reason for saying that the emergency, thus, considered to exist was not grave and did not threaten the security of Sarawak. These were essentially matters to be determined according to the judgment of the responsible Ministers in the light of their knowledge and experience.' ....
1278. Ghulam Sarwar v. Union of India (AIR 1967 SC 1335), wherein it was observed as under:-
1279. "
11. It was suggested that the declaration of Emergency under Article 352 of the Constitution in the year 1962 and the continuation of the emergency for 4 long years after the cessation of the hostilities with China is mala fide and is an abuse of powers conferred on the President under Part XVIII of the Constitution. The question raised involves two points: (1) whether the declaration of emergency or the continuation of it is vitiated by mala fides or abuse of power, and (2) whether such a question is justiciable in a Court of law. Our Constitution seeks to usher in a Welfare State where there is prosperity, equality, liberty and social justice. It accepts 3 concepts for bringing about such a State: (1) Federalisny, (2) Democracy; (3) Rule of Law, in which fundamental rights and social justice are inextricably integrated. Under Part XVIII when the emergency is declared both the Legislative and the Executive powers of the Union are conceded to States. The Federal Government is practically transformed into unitary form of Government. The fundamental rights of the people under Article 19 are abrogated and the Executive is empowered to suspend the right to move the Court for the enforcement of any other fundamental right. The Executive is also empowered to direct that all or any other provisions relating to distribution of revenue be suspended during that period. Part XVIII appears to bring down the grand edifice of our Constitution at one stroke, but a little reflection discloses that the temporary suspension of the scheme of the Constitution is really intended to preserve its substance. This extraordinary power is unique to our Constitution. It reflects the apprehensions of the makers of the Constitution and their implicit confidence in the parties that may come into power from time to time. Two expressions indicate the extraordinary situation whereunder this Part was intended to come into force. The expression 'grave emergency' in Article 352(1) and the expression 'imminent danger' in Article 352(3) show that the existence of grave emergency or imminent danger is a pre-condition for the declaration of emergency. Doubtless, the question whether there is grave emergency or whether there is imminent ? danger as mentioned in. the Article is left to the satisfaction of the Executive, for it is obviously in the best position to judge the situation. But there is the correlative danger of the abuse of such extraordinary power leading to totalitarianism. Indeed, the perversions of the ideal democratic Constitution, i.e., Weimar Constitution of Germany, brought about the autocratic rule of Hitler and the consequent disastrous World War. What is the safeguard against such an abuse? The obvious safeguard is the good sense of the Executive, but the more effective one is public opinion. A question is raised whether this Court can ascertain whether the action of the Executive in declaring the emergency or continuing it is actuated by mala fides and is an abuse of its power. We do not propose to express our opinion on this question as no material has been placed before us in that regard. It requires a careful research into the circumstances obtaining in our country and the motives operating on the minds of the persons in power in continuing the emergency. As the material facts are not placed before us, we shall not in this case express our opinion one way or other on this all important question which is at present agitating the public mind."
1280. In Chandler and others v. Director of Public Prosecutions (1962) 3 All England Law Reports 142), Lord Reid, at page 146, observed as follows:-
1281. ????????? ........ ? It is in my opinion clear that the disposition and armament of the armed forces are, and for centuries have been, within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised. I need only refer to the numerous authorities gathered together in China Navigation Co. Ltd. v. A.G. (1932) All E.R.Rep 626). Anyone is entitled, in or out of Parliament, to urge that policy regarding the armed forces should be changed; but until it is changed, on a change of Government or otherwise, no one is entitled to challenge it in Court ????????? "
1282. Lord Radcliffe, in the above judgment, expressed his views, at page 150 in the following words:-
1283. ????????? ..... ???? The defence of the State from external enemies is a matter of real concern, in time of peace as in days of war. The disposition, armament and direction of the defence forces of the State are matters decided by the Crown and are within its jurisdiction as the executive power of the
1284. State "
1285. Lord Delivin, in the same report, observed at pages 156 and 157, as under:-
1286. ..... ???? In the United Kingdom, in relation at any State to the armed forces and to the defence of the realm, that organ is the Crown. So long as the Crown maintains armed forces for the defence of the realm, it cannot be in its interest that any part of them should be immobilised ...."
1287. ????????? " ?????? No doubt the interests of the State ought' to be the same as the interests of the community. It would be the claim of those, who advise the Crown, that is, the Government of the day, that they are ... ...The Court is not the forum for such a debate and the jury is not the body to determine what the interests of the State should be. "
1288. Ernest DaCOSTA v. Melvin LAIRD, Individually and as Secretary of Defence (471 Federal Reporter, 2nd Series 1146, whey ;in at page 1155, it was observed:--
1289. ????????? " ?????? The proper response in such situations is not to 'assume' the truth of the facts, but candidly to recognise that the Court is incapable of assessing the facts and that the issue presented is, therefore, non justiciable. Such a course has the advantage of avoiding the appearance that Courts act as rubber stamps for policies developed by a coordinate branch of Government which fall without the realm of judicial consideration. "
1290. ????????? " ??????? In this instance, it was the President's view that the mining of North Vietnam's harbors was necessary to preserve the lives of American soldiers in South Vietnam and to bring the war to a close. History will tell whether or not that assessment was correct, but without the benefit of such extended hindsight we are powerless to know."
1291. Kurt G.W. Ludecke v. W. Frnak Watkins (335 US 160), wherein under the 'Headnotes' 6, 8 and 12, it has been observed as under:-
1292. "Headnote 6
1293. 'The state of war' may be terminated by treaty or legislation or Presidential Proclamation. Whatever the mode, its termination is a political act... Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled ...."
1294. "Headnote 8
1295. "The political branch of the Government has not brought the war with Germany to an end. On the contrary, it has proclaimed that 'a state of war still exists ....'."
1296. "Headnote 12;
1297. ????????? " ?????? Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally by confined. In relation to the distribution of Constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell, speaking of this very Act is still pertinent.
1298. "All systems of Government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power and it is to be presumed they generally will choose men of this description: but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people .... "Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where the Congress has Constitutionally placed it--on the President of the United States. The Founders in their wisdom made him not only the Commander-in-Chief ? but also the guiding organ in the conduct of our foreign affairs ??????? "
76. In the case of 'Kiyoshi Hirabayashi v. United State (63 S.Ct. 1375), the question before the Supreme Court, after the Japanese surprise bombings at Pearl Harbour, and the subsequent war, alien Japanese as well as those with Japanese ancestry were subjected to curfews during the night-time hours and put under military observation in concentration camps, was to determine the extent to which, if at all, these elements or the Proclamation of Emergency itself conformed with the Constitution of the United States, Chief Justice Stone concluded at page 1381 that:
1299. ....it was within the Constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the Military Commander involved no unlawful delegation of legislative power."
1300. At page 1382, Chief Justice Stone further observed:-
1301. "The war power of the National Government is 'the power to wage war successfully'.. It extends to every matter and activity so related to war as substantially to affect is conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defence, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining ? the nature and extent of the threatened injury or danger and in the ? selection of the means for resisting it." ? the actions taken must be appraised in the light of the conditions with which the President and Congress were confronted in the early months of 1942, many. of which since disclosed, were then peculiarly within the knowledge of the military authorities."
1302. 'Law of the European Convention on Human Rights' by D.J. Harris M O'Boyle C Warbrick, was also referred wherein, in chapter 16, Article 15 has been provided, in which, . under sub-heading 3: ' In time of war or other Public Emergency threatening the life of the Nation', it has been observed thus:-
1303. "It is for the Strabourg authorities to interpret each element in Article 15, including what can constitute a 'public emergency'. Although it has been argued that 'war' should both be read narrowly and serve so as to limit the kinds of 'other' public emergencies which are envisaged by Article 15, the practice of the Strabourh authorities has established that such a restricted understanding is not the proper one. They have not limited 'other' public emergencies to 'war-like situations ',.i.e. those where there is an external threat to the State. Even if 'war' were to be confined to its international legal meaning, 'other public emergency' covers other incidents of serious violence. Civil war and insurrection are main categories but it has been conceded that Article 15 goes further and allow a State to derogate from its human rights obligations in the face of low-intensity, irregular violence. In Ireland v. UK, the Irish Government accepted that conditions in the Province were sufficiently exceptional for Article 15 to apply. The period, involved was from 1970 to 1976, which included the most violent period in the continuing disturbances in Northern Ireland While it is not suggested that an independent inquiry by the Court would have resulted in a different outcome in Ireland v. UK, the possibility of unjustifiable reliance on Article 15 increases as the level ? of violence diminishes ? The Court briefly endorsed the Commission's ? conclusion, ...... making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom ...the Court considers that there can be no doubt that such a public emergency existed at the relevant time.
1304. In Lawless v Ireland the Court adopted the language of the Commission:
1305. '(the words) refer to an exceptional situation of crises or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed."
1306. Reference was also made to the case of Brannigan and Mcbride v. United Kingdom (17 E.H.R.R. 539 (1993), wherein at page 556, paragraph 44, it has been observed as under:-
1307. "44. The role of the Convention organs in examining questions arising under Article 15 of the Convention is limited given the wide margin of appreciation which must be left to States to assess the existence and scale of an emergency and the measures needed to deal with it. This limited role was described by the Court in the interstate case of Ireland v. United Kingdom:-
1308. "The limits on the Court's power of review are particularly apparent where Article 15 is concerned.
1309. It falls in the first place to each Contracting State, with its responsibility for 'the life of its nation', and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogation necessary to avert it. In his matter Article 15(1) leaves those authorities a wide margin of appreciation.
1310. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States' engagements, is empowered to rule on whether the States have gone beyond the ' extent strictly required by the exigencies' of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision."
1311. Syed Sharifuddin Pirzada next referred to 'Ireland's Evolving Constitution, 1937-97: Collected Essay, by Tim Murphy and Partick Twomey, wherein under the "A State of Emergency", it has been observed at page 204 as follows:-
1312. ????????? ........... ??????? Yet, when the latter became a reality, neutrality necessitated an amendment to the new Constitution in the form of the First Amendment extending the Article 28.3 definition of 'time of war' (during which legislation is withdrawn from normal judicial control) to include conflicts in which the State is not a participant but which affected the 'vital interests of the State'. Subsequently, in 1941, the Second Amendent to the Constitution extended the definition, to include such time after the termination of such war or conflict until the Oireachtas deems the national emergency to have passed. Thus, the 1939 emergency continued in place until it, was overtaken in September,
1313. 1976 by a new national emergency, this time arising out of the conflict in Northern Ireland"
1314. Syed Sharifuddin Pirzada also referred to 'Rule of Law in a State of Emergency' by Subrata Roy Chowdhury, under Chapter 1, Section A: Emergency: Declaration, Duration and Control, under sub-heading 'Public Emergency' and allied concepts: a generic term' at page 12 of the book, it has been observed:-- ,
1315. "The expression 'public emergency' is being used in a generic sense to embrace the central concept of a variety of legal terms in different legal systems to identify an exceptional situation of public danger permitting the exercise of crises powers in a particular state. This terminology would, therefore, cover the status of different regimes known as states of emergency, of siege, of alert, of prevention of internal war, of suspension of guarantees, of martial law, of special powers etc ........???????????.
1316. ???????????????
1317. ??????????????..
1318. ........... ??????? The I.L.A. is of the view that the official proclamation of an emergency is an important safeguard and should be accepted as a legitimate international norm.
1319. ???????
1320. ??????????.
1321. "Article 16 of the French Constitution an exception
1322. "It will have been observed that effective Parliamentary or legislative control of a regime of exception is of the essence of the reference model of the Paris minimum standards. Where, however, the assumption or the exercise of emergency powers is virtually the exclusive monopoly of the executive branch, with little or no control by the legislative or judicial branches, such a regime represents a radical departure from the reference model . . . . . . ... "
1323. "In the French case, emergency powers are concentrated in the hands of the executive except the power to amend the Constitution. Apart from the extreme case of trial for 'crime against the Constitution' by the High Court (itself composed of members of Parliament), there is no direct control of emergency by the French Parliament. Parliament is powerless to judge the validity of the proclamation of Emergency; equally powerless are the Courts of Law and the Council of State (Conseil d'Etat) to judge the validity of the Proclamation of an emergency or to review the special powers or legislative measures pursuant thereto, taken by the executive. With a view to preventing any scrutiny by the organs of implementation under the European Convention, France has entered a reservation to Article 15 of that convention ....The possibility of abuse of emergency powers in a country without the liberal tradition of France with its in-built democratic structure, cannot be ruled out. "
1324. As to the scope of judicial review, it was observed;-
1325. ....Six years later the Kingston Seminar of the United Nations recorded the General agreement that the 'declaration of a state of emergency should not be subject to Judicial control."
1326. While proceeding ahead, it was observed in the report, under sub-heading 'Alexander's seminal study', inter alia, as under:-
1327. "On the specific issue of whether a declaration of emergency is Justiciable, the preponderant view is that the Judgment of the political branches of the Government (executive and legislature) is normally immune from judicial review, but there are some exceptions. In principle, recent Juristic opinions support a more activist judicial role in reviewing emergency powers."
1328. Reference was also made to "Human Rights" 'The International Bill of Human Rights' Fact Sheet No.2 (Rev.1), wherein under the heading 'International Covenant on Civil and Political Rights', Article 4 provides as under:-
1329. "1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from -their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the around of race, colour, sex, language, religion or social origin."
1330. Reliance was then placed on 'States of Emergency', A Study prepared by the International Commission of Jurists, wherein under the heading "Role of the Judiciary and the Bar' at page 459 to 463 a 'Summary of Recommendations' for implementation at the national level, has been given, relevant portion whereof is reproduced hereunder for reference:-
1331. "1. The Constitution should clearly state and limit the effects of states of emergencies on legal rights and on the powers of the branches of Government. As a minimum the Constitution should specify that the rights recognised as non-derogable in international law may not be affected by a state of emergency.
2. The Constitution should enumerate and define the situation which justify departure from the normal legal order, preferably distinguishing between various types of emergencies.
3. The Constitution should define the procedure for declaring a state of emergency; if the executive has the authority to declare an emergency, legislative approval within a defined period of time should be required, preferably by an enhanced majority.
4. The Constitution should specify that no state of emergency have legal force beyond a fixed period of time, which should not exceed 6 months. Every declaration of emergency should specify the duration of the emergency.
5. Normal judicial remedies should remain available during an emergency for all rights which are not suspended by virtue of the state of emergency.
6. The ordinary Courts should have jurisdiction over charges of abuse of power and human rights violations by security forces.
7. The civilian judiciary should retain jurisdiction over trials of civilians charged with security offences.
8. The use of emergency powers to remove Judges, to alter the structure of the judicial branch or otherwise restrict the independence of the Judiciary should be expressly prohibited in the Constitution.
77. The learned counsel has referred to 'Constitution of Republic of South Africa, 1996', a latest Constitution of the world, wherein there is a detailed mention of 'states of emergency' and other related provisions including enforcement of fundamental rights, guaranteed under that Constitution. He has also referred to Article 102 of the Government of India Act, 1935. Both these references have already been fully reproduced above therefore, it is not necessary to repeat the same. However, reference to Article 126-A of Government of India Act, 1935 (ibid) had been made, which is as under:-
1332. " 126-A. Where a Proclamation of Emergency is in operation whereby the Governor-General has declared that the security of India is threatened by war-
(a) the executive authority of Federation shall extend to the giving of directions to a Province as to the manner in which the executive authority, therefore, is to be exercised, and any directions so given shall for the purposes of the last preceding section be deemed to be directions given thereunder;
(b) any power of the Federal Legislature to make laws for a Province with respect to any matter shall include power to make laws as respects a Province conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties, upon the Federation or officers and authorities of the Federation as respects that matter, ? notwithstanding that it is one with respect to which the Provincial Legislature also has power to make laws: '
1333. Provided that no Bill or amendment which as respects a Province, confers powers or imposes duties, or authorises the conferring of powers or the imposition of duties, upon the Federation or upon officers or authorities of the Federation in relation to such a matter as aforesaid shall be introduced or moved without the previous sanction of the Governor-General shall not give his sanction unless it appears to him that the provision proposed to be made is a proper provision in view of the nature of the emergency."
(2) The following consequential amendment shall, for the avoidance of doubt, be made in subsections (2) (3) of section 124 of the said Act, that is to say, after the word 'duties' there shall be inserted the words 'or authorize the conferring of powers and the imposition of duties'.
(3) At the end of section 102 of the said Act, there shall, for the avoidance of doubt, be inserted the following subsection:-
(5) A Proclamation of Emergency declaring that the security of India is threatened by war or by internal disturbance may be made before the actual occurrence of war or of any such disturbance if the Governor General in his discretion is satisfied that there is imminent danger thereof."
1334. Syed Sharifuddin Pirzada, the learned Senior Advocate Supreme Court further relied on the following references viz. "Cases and Materials on International Law, 1995-96 by Martin Dixon, wherein at page 564, it has been observed thus:-
1335. ????????? " ? These two categories are, first, wars of agitation, infiltration and subversion carried on by proxy through national liberation movements; and, second, nuclear wars involving the instantaneous use, in a first strike, of weapons of near paralyzing destructiveness."
1336. In the "Constitutions of the Countries of the World", Edited by Gisbert H. Flanz, Ireland Booklet 2 by Gerard Hogan, under Article 28 at page 88 of the book, it has been provided:-
1337. "2????????????.
1338. "3. Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this subsection 'time of war' includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and 'time of war or armed rebellion' includes such time after the termination of any war,, or of any such armed conflicts aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist:"
1339. Article 40 at page 132 of the Book provides
1340. "6. Nothing in this section, however, shall be invoked to prohibit, control, or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion."
1341. Reliance was placed on a book, namely, 'Comparative Federalism' by Dr. Justice Durga Das Basu, as to war powers of Government during an external emergency even in those countries like United State of America and Australia, etc., where there are no specific emergency provisions in their Constitutional and where Judiciary comes to the aid of expansion of federal power, by a liberal interpretation of the powers of defence, which the Federal Legislature already have under the Constitution under such grave situations. The war power of the President in the above countries is not subject to judicial review. Some relevant extracts from Chapter III of the Book, entitled 'Impact of External Emergency Upon Federal Powers", at page 335 are as under:-
1342. ..... ???? But the total Wars of the 20th Century have set forth the lesson that in a modern war it is not possible for any country to remain altogether indifferent, even though there is no enemy on its borders."
1343. "There is little doubt that in a modern warfare, active participation or passive defense would equally call for unified, prompt and effective action, which is obviously likely to be obstructed where the resources and the function of decision-making are divided between two separate and co-ordinate Governments. This is why, most of the post-war Federal Constitutions have made express provisions in the Constitution to turn the federal system temporarily into a unitary one during an external emergency, so that the country might stand as one man against a common foe... "
1344. "In those countries, such as the U.S.A., or Austrialia, which do not have any specific emergency provisions in their Constitutions, the Judiciary have come to the aid of expansion of federal power, by a liberal interpretation of the powers of defence which the Federal Legislature already have under the Constitution.
1345. "Nevertheless, the judiciary has aided the expansion of federal power in times of war as well as for its preparation and for subsequent rehabilitation after its termination, by a liberal expansion of the federal power relating to war."
1346. ??????????. "i. The powers as Commander-in-Chief include the power to initiate as well as to conduct the war and to send troops to fight, in anticipation of legislative declaration of war. "
1347. ?????????.. "iv. The war power of the President is not subject to judicial review; and the Court has refused to interfere with the Presidential commitment of American forces to fight a foreign war without Congressional sanction. "
1348. ????????.
1349. "After the termination of war, however, the expansion of Federal power is brought under closer judicial control. While the Court would uphold Federal legislation which is necessary to remedy the condition which followed from the mobilisation of men and materials for successful prosecution of the war, the propriety of the exercise of the power after termination of hostilities is open to judicial review and it cannot be allowed to continue indefinitely or so long as the economic effects of war are felt (Woods v. Miller (1948) 333 U.S. 138)."
1350. "But, as Douglas in his Tagore Law Lectures observed, notwithstanding the foregoing expansion of Federal power during war emergency, in the U.S.A., 'never has the War power been conceived to embrace the broad powers of control contained in Article 352 .... of the Indian Constitution'."
1351. ????????????
1352. "(i) During, actual warfare. ---During this period, the power of judicial review is reduced to the minimum, inasmuch as whether a particular measure is necessary for the purpose of defence can be determined only if the reasons for it could be brought before the Court; but in the nature of the exigencies of modern war, these can rarely be disclosed by the Government, so that the Court can, at most, take account of facts of which it could take judicial notice. The ambit of the 'defence power' during times of war is thus almost absolute." "ii. After termination of war.---When peace is restored, the Court would act upon the general principle that no such control and regulation of the social and economic life would be necessary as would be justified when the country was engaged with power enemies. "
1353. "(a) Those measures which are required during the transitional period to restore the .condition which has been upset by the war, such as the rehabilitation of the armed personnel, rebuilding of cities destroyed by war, control of prices and the like, would be treated as incidental to the exercise of the defence power, subject, however, to a great degree of judicial review as to the need for such legislation, having regard to the changing situation. "
1354. "(b) The Court would similarly tolerate those measures which are necessary in anticipation of a future war, e.g., raising army, control of manufacture of goods and of services that may be required for defence, including control of credit. But the Court would not tolerate restrictions upon personal liberty, such as the freedom of association, unless the imminence of a war was demonstrated to the satisfaction of the Court together with reasonable connection between the restriction and the emergency. "
(a) In the name of war emergency, the Federal Legislature could not make a permanent law relating to Provincial subjects.
(b) After the cessation of hostilities, in order to sustain the continuance of such Federal law, it must be demonstrated to the Court that 'the circumstances are (still) abnormal' so as to make Federal law 'without the cooperation of the Provincial Legislatures' thereby overriding 'the distribution of legislative powers enacted by the Constitution Act'."
1355. Reference was made to the case of The Cheng Poh alias Char Meh v. Public Prosecutor, Malaysia (1980 Appeal Cases 458), wherein it was observed at page 466 as under:-
1356. "In considering the validity of the regulations it is necessary to bear in mind two dates: May 15, 1969, the date of issue of the Emergency Proclamation, at a time when Parliament was sitting, and February 20, 1971, when Parliament next sat. During that period, the Yang diPertuan Agong is empowered by Article 150(2) of the Constitution to promulgate Ordinances having th.- force of law, if satisfied that immediate action is required.'
1357. "Although this, like other powers under the Constitution, is conferred nominally upon the Yang di-Pertuan Agong by virtue of his office as the supreme head of the Federation and is expressed to be exercisable if he is satisfied of a particular matter, his functions are those of a Constitutional monarch and, except on certain matters that do not concern the instant appeal, he does not exercise any of his functions under the Constitution on his own initiative but is required by Article 40(1) to act in accordance with the advice of the Cabinet. So when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affairs exists or that particular action is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question."
1358. At page 468 of the report, it was observed as follows:-
1359. "There are only two sources from which the Yang di-Pertuan Agong as such can acquire power to make written law, whatever label be attached to it: one is by a provision of the Constitution itself: the other is by the grant to him of subordinate legislative power by an Act passed by the Parliament of Malaysia in whom by Article 44 of the Constitution the legislative authority of the Federation is vested. So far as his power to make written laws is derived from Article 150(2) of the Constitution itself, in which they are descried as 'Ordinances', it comes to an end as soon as Parliament first sits after the proclamation of an emergency; he cannot prolong it, of his own volition, by purporting to empower himself to go on making written laws, whatever description he may apply to them. That would be tantamount to the Cabinet's lifting itself up by its own boot straps. If it be thought expedient that after Parliament has first sat the Yang di-Pertuan Agong should continue to exercise a power to make written laws equivalent to that to which he was entitled during the previous period of exercise under Article 150(2) of the Constitution, the only source from which he could derive such powers would be an Act of Parliament delegating them to him."
1360. At page 469 it was observed:-
1361. ????????? " ?????? The powers to revoke, however, like the power to issue a proclamation of emergency, vest in the Yang di-Pertuan Agong, and the Constitution does not require it to be exercised by any formal instrument. In their Lordships' view, a proclamation of a new emergency declared to be threatening the security of the Federation as a whole must by necessary implication be intended to operate as a revocation of a previous proclamation, if one is still in force. "
1362. At page 470 of the report, it was opined as under:-
1363. "For the above reasons their Lordships are of opinion that once Parliament had sat on February 20, 1971, the Yang di-Pertuan Agong no longer had any power to make Essential Regulations having the force of law. The Essential (Security Cases) (Amendment) Regulations 1975 purport to alter in respect of security cases the mode of trial laid down by the Criminal Procedure Code. They are ultra vires the Constitution and for that reason void. "
1364. It was further observed at page 373 of the report thus:-
1365. "This, however, does not mean, as the defendant would have it, that the security area proclamation can be treated by the Court as having lapsed ipso facto as soon as there are no longer any grounds for considering it still to be necessary for the particular purpose described in section 47 for which it was originally made. Apart from annulment by resolutions of both Houses of Parliament it can be brought to an end only by revocation by the Yang di-Pertuan Agong. If he fails to act the Court has no power itself to revoke the proclamation in his stead. This, however, does not leave the Courts powerless to grant to the citizen a remedy in cases in which it can be established that a failure to exercise his power of revocation would be an abuse of his discretion. Article 32(1) of the Constitution makes the Yang di-Pertuan Agong immune from any proceedings whatsoever in any Court. So, mandamus to require him to revoke the proclamation would not lie against him; but since he is required in all executive functions to act in accordance with the advice of the Cabinet, mandamus could, in their Lordship's view, be sought against the members of the cabinet requiring them to advise the Yang di-Pertuan Agong to revoke the proclamation. No such steps to obtain revocation of the security area proclamation had been taken by January 13, 1976. Their Lordships are far from suggesting that there was any material in existence before that date which would have justified an application for mandamus on the grounds that have Insurance Company Ltd. (PLD 1960 SC (Pak, 202), wherein at page 204, it was observed as under:-
1366. "An Explanation is enacted by the Legislature to explain what otherwise would be doubtful or ambiguous. To the extent that it explains a stipulated situation its function is definitive inasmuch as it clarifies or defines the legal position in a supposed state of facts. Therefore, despite the words 'shall be deemed' Explanation (2) in terms defines the words 'carries on business' used in clauses (a) and (b) of the section, and means that where the defendant is a corporation, it is deemed to be carrying on business at its sole or principal office irrespective of whether the cause of action has arisen there, as well as the place where it has its subordinate office, provided that cause of action arises there. This appears to us to be its plain meaning. "
1367. In the case of Chief Administrator of Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi (PLD 1991 SC 596), wherein is has been observed at 599, as under:-
1368. "In construing the definition clause the High Court maintained that to be ' Waqf property', it must have been dedicated by a person professing Islam, for any purpose recognized by Islam as pious, religious and charitable and that Explanation I did not have effect of doing away with this condition. It is well-settled that when a phrase is defined as having a particular meaning in the Act, it must be given the same meaning throughout the Act, unless there is anything repugnant in the context. There is, however, nothing in section 7 which empowers the Chief Administrator, Auqaf to notify a property as Waqf property, denying the application of the definition clause thereto. Significantly, in the definition clause the word 'means' figures. The user of this expression would indicate that definition is hard and fast and no other meaning can be assigned to the expression other than that given in the definition."
1369. In the case of Commissioner of Income Tax v. Mohan Meakin Breweries Ltd. (1992 PTD Note 395 at p.421), it has been held:-
1370. "An explanation added to a statutory provision is not a substantive provisions in any sense of the term as the plain meaning of the word itself show. It merely clarifies certain ambiguities which may be crept in the statutory provisions."
1371. Reference has also been made to the case of Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313), wherein it has been observed as under:-
1372. "In any event, event assuming that the immediate cause which gave rise to the issue of the Proclamation was the imminent danger of being threatened by war, no clear demarcation is possible of what is or what is not necessary to meeting that emergency. Internal disorder, sabotage behind the lines, prejudicial acts threatening or disturbing law and order with the country may all have far-reaching effects on the measures needed to be taken for effectively meeting the threat or danger of war.
1373. It cannot, therefore, be said that the maintenance of the security or the economical life of Pakistan is not a matter having any bearing on the measures ? necessary for meeting the emergency created by the imminent ? dager of war. In such a situation threats of breaches of law and order or dangers to internal security may be more important for keeping up the morals of the people so necessary for any efficient prosecution of war efforts and it is not difficult to comprehend that the prevention of such a pernicious situation might well be beyond the power of the Provincial Government to control. It cannot, therefore, be said that although the emergency had been lawful proclaimed (this is not disputed) the President had no power to make Ordinance to meet that emergency in the fullest measure."
1374. He next referred to the case of The Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan (PLD 1969 SC 485), wherein it has been observed at page 509-G of the report as under:-
1375. "Both under the international law as well as the Municipal Law, therefore, the tribal territories became part and parcel of Pakistan and were duly recognized as such by the United Kingdom and the member Nations of the South East Asia Treaty Organization. The Dominion of Pakistan through its Constitutional Assembly also formally accepted it as such. In the circumstances it was not for the Municipal Courts to hold otherwise. It is important to remember that in such matters of a political nature, namely; accession or cession of territory it is not for the Courts to take a different view. The executive authority of the State has in the exercise of its Sovereign power the right to say as to which territory it has recognised as a part of its State and the Courts are bound ? to accept this position. Indeed this was the principle that was given statutory effect in section 4 of the Foreign Jurisdiction Act, 1890 and section 6 of the Governor-General's Order No.5 of 1949. If the Courts felt any doubt with regard to the status of such a territory then it was incumbent upon them to make a reference to the Government and to accept its opinion."
1376. The case of State of Madhya Pradesh v. Thakur Bharat Singh (AIR 1967 SC 1170), was referred, in which at page 1173, paragraph 5, it was observed as under:
1377. "(5) Counsel for the State urged that in any event so long as the state of emergency declared on October 20, 1962, by the President under Article 352 was not withdrawn or revoked, the respondent could not move the High Court by a petition under Article 226 of the Constitution on the plea that by the impugned order his fundamental right guaranteed under Article 19(1)(d) of the Constitution was infringed. But the Act was brought into force before the declaration of the emergency by the President. If the power conferred by section 3(1)(b) authorized the imposition of unreasonable restrictions, the clause must be deemed to be void, for Article 13(2) of the Constitution prohibits the State from making any law which takes away or abridges the right conferred by Part III, and laws made in contravention, of Article 13(2) are to the extent of the contravention void. Section 3(1)(b) was, therefore, void when enacted and was not revived when the proclamation of emergency was made by the President. Article 358 which suspends the provisions of Article 19 during an emergency declared by the President under Article 352 is in terms prospective: after the proclamation of emergency nothing in Article 19 restricts the power of the State to make laws or to take any executive action which the State but for the provisions contained in Part III was competent to make or take. Article 358, however, does not operate to validate a legislative provision which was invalid because of the Constitutional inhibition before the Proclamation of Emergency. Counsel for the State while conceding that if section 3(1)(b) was, because it infringed the fundamental freedom of citizens, void before the Proclamation of Emergency, and that it was not revived by the Proclamation, submitted that Article 358 protects action both legislative and executive taken after Proclamation of Emergency and, therefore, any executive action taken by an officer of the State or by the State will not be liable to be challenged on the ground that it infringes the fundamental freedoms under Article 19. In our judgments, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the Proclamation of Emergency subsists laws may be enacted, and executive action. may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. Our Federal structure is founded on certain fundamental principles: (1) The sovereignty of the people with limited Government authority, i.e., the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State legislative, executive and judicial--each organ having some check direct or indirect on the other; and (3) the rule of law which includes judicial review of arbitrary executive action. As pointed out by Dicey in his 'Introduction to the Study of the Law of the Constitution', 10th Edn., at p.202, the expression 'rule of law' has three meanings, or may be regarded from three different points of view:
1378. "It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government."
1379. At page 188, Dicey points out:
1380. "In almost every continental community the executive exercises for wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the Government in England: and a study of European politics now arid again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects."
1381. "We have adopted under our Constitution not the continental system but the British System under which the rule of law prevails. Every Act done by the Government or by its officers must if it is to operate to the prejudice of any person, be supported by some legislative authority."
1382. Finally, the learned counsel referred to 'Rights and Constitutionalism', 'The New South African Legal Order' edited by Dawid Van Wyk, John Dugard, Dertus de Villers, Dennis Davis, wherein at page 630, under sub-heading "1. Historical background", it has been observed as under:-
1383. "The powers of the State in times of public emergency is another area of Sough African public law most fundamentally altered by the new Constitution. The idea that the State is entitled to protect the public order and to curtail the rights of the individual in times of war or internal rebellion is generally accepted. It is also found in South African common law. The Roman law basis for this is contained in the principle salus rei publicae suprema lex. It is said to be founded on notions of self-defence and necessity. From English law we have inherited the concept of martial law as part of the prerogative powers."
1384. "An essential characteristic of these 'emergency powers' was that their exercise was largely beyond judicial control. The judicial protection of the individual was for all practical purposes non-existent."
1385. "The proposal to include a suspension clause in the new Constitution was a controversial one. The abuses of the recent past have engendered a profound suspicion of states of emergency. Eventually the concept of emergency powers for the State was accepted. However, the issue is now regulated by section 34, under the heading 'State of Emergency and Suspension'. This is the Constitutional provision which now allows suspension of the obligation to respect and enforce fundamental rights. Such a suspension will be permissible only under strictly circumscribed conditions which are regulated by the Constitution."
78. I appreciate the frank and bold statement made by Syed Sharifuddin Pirzada, though appearing on behalf of the Government that a judicial order to the Executive could be passed to revoke the Proclamation of Emergency if the 'material presented against the same satisfied the Court, on solid grounds, that the circumstances did not warrant to proclaim emergency. I am also inclined to agree with him.
79. Clearly, the petitions are maintainable. I fully subscribe to the reasoning assigned by the Hon'ble Chief Justice in repelling the contention of the learned Attorney-General on the question of maintainability.
80. I am not impressed by the plea raised b: the learned Attorney-General that this Court has no authority to examine the Proclamation of Emergency issued by the President. The Parliament, the President, the Executive and Judiciary are the creatures of the Constitution. Each organ of the State has to function within the sphere allotted to it under the Constitution. Neither of them can be .permitted to invade into the functions and powers of the other organs of the State. As to what power was granted to the Courts and what limitations were imposed on it are questions which have always been, and always will be, the subject of a close examination by the superior Courts, under the Constitutional scheme envisaged by the Constitution of Islamic Republic of Pakistan, 1973. The independence of the juiciary can never be taken away.
81. Loyalty to the State is the basic duty of every citizen. Obedience to the Constitution and law is equally applicable to every citizen wherever he may be and every other person for the time being within Pakistan including the Government in power and the Courts. Clearly, the Court can, exercise the power i vested in it under the Constitution to examine the validity of the proclamation ` with a view to ascertain as to whether the pre-conditions laid down under Article 232(1) of the Constitution exist or not or it is without jurisdiction, coram non judice or mala fide. But the Courts while exercising judicial power must also abide by the Constitution. It is true that the powers available under the above provisions are drastic and might be abused. The danger of abuse is', theoretically present. But in this case, it is wholly absent. The Proclamation is intra vires of the Constitution. There has been no abuse of exercise of power by the President. In fact, Mr. Shahzad Jehangir emphatically stated that no motive could be attributed to the President and that he acted in good faith.
82. Fundamental Rights provide Constitutional safeguards to civil liberties. These rights guaranteed by the Constitution are essential human rights which inherently belong to every citizen of a country governed in a civilized mode. Not one of these safeguards can, the President of Pakistan, the Parliament, the Executive or the Judiciary, disturb under the scheme of the Constitution, except those having reasonable nexus with the object of the Proclamation of Emergency during its continuance. This is essential to ensure so that the Government may not derogate from Fundamental Rights. If arbitrary and unlimited powers for suspending Fundamental Rights is conceded to the Government, during the period of Emergency, and without having any reasonable nexus with the object of Proclamation, the dangers to human liberties are frightful to contemplate. Such a concession to the Government is likely to lead to despotism and anarchy, which cannot be countenanced by the Courts. It respectfully do not subscribe to the view taken by the Indian Supreme Court in the case of Muhammad Yaqub (supra) that it is open to the President to suspend the enforcement of any of the Fundamental Rights conferred under the Constitution during the continuance of emergency and wherever such suspension is made it is in the interest of the country and no further proof of it is necessary. In my humble view only such Fundamental Rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency. A satisfactory solution can, therefore, be had only if the power available to the President under the Constitution to proclaim emergency is exercised with the least encroachment upon the rights and liberties of the citizens.
83. I am in full agreement with Syed Sharifuddin Pirzada, as stated above, that for imposition of emergency in the country only threat of war is not necessary, it can be proclaimed due to any threat of foreign aggression as well. Clearly, the emergency can arise out of the threat of aggression even though actual aggression has not taken place; nevertheless the situation by all means connotes the same. Syed Sharifuddin Pirzada was also right in submitting that the present technology is both fast and destructive and does not give any span of time to the rival country for its security, therefore, imposition of emergency after the bomb explosions was necessary.
84. I also agree with Mr. Pirzada that initially the President is the only person who under the Constitution of Pakistan can judge the situation and promulgate the emergency and, in the instant case, he did so after completely satisfying himself by the documents produced before him by the Government for his satisfaction. I, however, do not agree with him that the Proclamation issued
1386. ? been mentioned above. They do not regard themselves as qualified to express any views on the matter either way. But since it had not been revoked the proclamation was still in force; Penang was in a security area; and section 57 of the Internal Security Act, 1960, which made possession of ' fire-arms or ammunition capital offences, was applicable to the possession of fire-arms in Penang. Their Lordships are, thus, unable to uphold the defendant's contentions under the second head."
1387. The learned counsel then proceeded to refer to the following judgments of this Court to show the function of the "Explanation" under the interpretation of statutes. In the case of Messrs Rahmania Trading Company v. Messrs Eagle Star by the President is not subject to judicial review, however, the extent of the jurisdiction to be exercised by the Courts has already been spelt out in preceding paragraphs.
85. Before parting, I would like to express my highest admiration for the most valuable assistance rendered by the learned Attorney-General, the learned counsel appearing for the parties and the learned counsel appearing as amicus curiae. I would also record my appreciation for the assistance rendered by Mr. Muhammad Aslam, Assistant Librarian, in tabulating the case-law, relied upon by the learned counsel for the parties.
1388. These are the reasons pursuant to the short order dated 28-7-1998
1389. (Sd.)
1390. IRSHAD HASAN KHAN, J
1391. MUHAMMAD BASHIR JEHANGIRI, J.--On the 28th of July, 1998, for reasons to be recorded later on, we had unanimously held as under:-
1392. "(1) ??? That the petitions are maintainable
(2) ???? That the materials placed before this Court and shown to us in the Chamber, prima facie indicate that the 'President was justified in issuing the Proclamation under clause (I) of Article 232 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution). ,
(3) ???? That keeping in view the effect of the Proclamation provided for in clause (1) of Article 233 of the Constitution, which authorises the State to make any law or to take any executive action in deviation of Articles 15, 16, 17, 18, ~ 19 and 24 of the Constitution and also keeping in view the language of Articles 10, 23 and 25 (which are hedged with qualifications), we are of the view that an order under clause (2) of Article 233 of the Constitution for suspending the enforcement of the Fundamental Rights was not justified and, therefore, the original order dated 28-5-1998 and the order dated 13-7-1998 varying the above earlier order are declared as without lawful authority and of no legal effect.
(4) ???? That this Court has jurisdiction to review/re-examine the continuation of Emergency at any subsequent stage, if the circumstances so warrant."
2. I respectfully concur in the findings on the propositions raised at (1), (2), (3) and (4) (ante) and the reasons furnished therefor by my Lord the Chief Justice. However, in view of great Constitutional importance of the question relating to suspension of Fundamental Rights, I am tempted to add a note of my own on the finding on the proposition noted at No.(3) ante which according to my light further supports the conclusions arrived at by my Lord.
3. Fundamental rights are those natural rights which are personal to the individual as a citizen of a free and civilised community and belong alike to every man, woman and child; their basis grounded on the philosophy that there is a higher transcendental law which cannot be undone by legislative will. The mere statement of such rights in the enacting part of a Constitution is a prohibition by necessary implication of legislation inconsistent therewith, making such legislation void. The essential characteristic of fundamental rights is that they impose limitations, express or implied, on public authorities, legislative, executive and judicial, prohibiting them from interfering with their exercise. No right can be properly described as fundamental if the Legislature can take it away by a law not involving an amendment of the Constitution, or unless its suspension or surrender in a national emergency is specifically provided by the Constitution itself. But such rights are often to be found encumbered by provisos and qualifying conditions, with the result that they are seldom stated in the form of absolute propositions. (Quoted from: (1) State v. Williams 68 Com. 131; (2) State v. Phelps Wis. 1; (3) State v. Rossman 53 Wash 1; (4) Province of East Pakistan v. Md. Mehdi Ali Khan and others PLD 1959 SC 87; (5) Jibendra Kishore and others v. The Province of East Pakistan PLD 1957 SC 9 and (6) Nasrullah Khan v. District Magistrate PLD 1965 Lah. 642 by Muhammad Munir in his Commentary on Constitution of the Islamic Republic of Pakistan, 1973, page 90.
4. The origin of fundamental rights, also called basic rights, in the context of Western Civilization is traceable to the philosophy of some European writers of the seventeenth and eighteenth centuries, particularly Locke and Rousseau, the theory of natural law, English Common Law and the economic theory of individualism with its guiding principle laissez faire. These vague and not precisely defined notions of natural rights were taken by the settlers to the American Continent where they were given by lawyers a precise legal form in the Constitution of the Untied States and its subsequent amendments. The American Judges expounded, explained and defined them further for almost a century and a half till they were crystallised into a definite branch of American Jurisprudence. From America they were borrowed by the constituent bodies which were called upon to make Constitutions for the European States reconstituted after each of the two World Wars. Japan and Eire inserted them into their own Constitutions and when Pakistan, India and Burma became independent and framed their own Constitutions, these rights received special attention in their scope and formulation. In December, 1948, the General Assembly of the United Nations Organization approved a list of 30 Human Rights which are similar to and include the more important of fundamental rights. (Ibid, p.92).
5. The limitations imposed by our Constitutional law upon the action of the Governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of the self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the Government. In this country (USA) written Constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their Governments, and' the provisions of Magna Carta were incorporated into Bill of Rights. They were limitations upon all the powers of Government, legislative as well as executive and judicial. (The observations of Miller, J. in Savings and Loan Association v. Topeka quoted by Evans Hughes in his Treatise: "Supreme Court of the United States" (22 L.Ed. 461).
6. Reverting to the proposition itself the learned counsel for the petitioners in general severely criticised the Proclamation of Emergency and the suspension of Fundamental Rights in an unchaste hurry. Mr. Hamid Khan, learned Advocate Supreme Court, appearing on behalf of Imran Khan petitioner in Constitution Petition No. 17 of 1998 has particularly referred to the Proclamations of Emergency in Pakistan and consequential suspension of Fundamental Rights, firstly, on 6-9-1965 and then on 23-11-1971 which continued till its revocation on 23-3-1985. This large spell of the country being ruled under Emergency was compared with the Proclamation of Emergency by India which was for the first time proclaimed on 26-10-1962 and revoked on 10-1-1968 and then Emergency was clamped on 3-12-1971 and revoked on 21-3-1977 respectively. According to Mr. Hamid Khan, Pakistan had thus laboured under continuous emergency from 6-9-1965 to 23-12-1985. Again according to him in Pakistan Fundamental Rights had remained in force from 23-3-1956 to 7-10-1958 and again on 10-1-1964 till 6-9-1965. Then the Fundamental Rights remained suspended till 13-8-1974 and were restored only on 14-8-1974 to remain in force till 4-7-1977. They were again suspended on 5-7-1977 continued to remain suspended till 23-3-1985. It was thus highlighted that the rulers of Pakistan had unfortunately been very fond of governing the country without Fundamental Rights which trend, according to him, remains still very attractive to the present rulers of the country. In this context, he submitted that in the context of the past experience in India and Pakistan due to their large scale armed conflict the present Emergency was out of character inasmuch as, according to him, mere conduct of nuclear tests cannot be regarded as a threat of external aggression. In this context, he urged that Pakistan was the 7th country which had tested nuclear devices. None of the countries of the world with nuclear power had imposed either Emergency in the country or had stripped off the citizens of their Fundamental Rights. He had rightly pointed out the following test for Proclamation of Emergency and suspension of Fundamental Rights, namley:-
(1) The war must be actual or at least imminent
(2) ???? Its effects must involve the whole nation.
(3) ???? The continuance of organized life of the community must be threatened
(4) ???? The crisis or threat must be exceptional, and that the normal measures) or restriction of public safety, regulated by law are found clearly inadequate.
7. It was, therefore, pointed out that Fundamental Rights enshrined in Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25 themselves have imposed reasonable restrictions by law in the public interest, and therefore, restrictions imposed under the ordinary law in this respect would be enough to safeguard the public interest and there existed no possible justification for suspension of these Fundamental Rights.
8. I am of the confirmed view that the Constitution of Pakistan, 1973, had provided the Fundamental Rights by way of formulation of the great principles of democracy, freedom, tolerance and social justice as enunciated by Islam. It would, therefore, be advisable that they should be fully observed. In the broader prospective "the Fundamental Rights had Constitutional status as law transcending the status of laws made by Legislature under the Constitution". In the presence of Fundamental Rights, there seems to me no room for the argument that there was any vacuum in the legal structure of Pakistan such as may frustrate the scrutiny, under the judicial prerogative of review, of any action in the exercise of any power, whether it be public or private. In the case of The State v. Dosso PLD 1958 SC 533 Cornelius, J., though in minority, had shown more concern for the establishment of natural rights even under the framework of Martial Law. In that case also, he refrained from coming to a conclusion affecting adversely the liberty of a citizen. He did not accept the proposition that all pending proceedings had abated by reason of the cancellation of the Fundamental Rights. He stated his views in the following words:-
1393. ... ... . .. it remains further to be said with reference to Rights enumerated in Part II of the Constitution of 1956 that they did not derive their entire validity from the fact of having been formulated in words and enacted in the Constitution. A number of these rights are essential human rights which inherently belong to every citizen of a country governed in a civilized mode ... .. ..I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October, 1958 have the effect of bringing to an abrupt end the proceedings in the petitions before the High Courts." `
1394. In defence of Fundamental Rights, be further said:
1395. ... ...by that Order, it is also provided that the country shall be governed as nearly as may be in accordance with the late Constitution, therefore, the Fundamental Rights, being related generally to all matters within the province of Government, should be deemed to have been kept alive."
9. Chief Justice Munir was not favourably inclined to accept the contention that the Fundamental Rights were kept alive after the declaration of Martial Law. While Cornelius, J. asserted, in one case after another, that there were certain basic natural rights which continued to exist in the country irrespective of whether or not the country was under Martial Law, Munir repeatedly emphasized the disappearance of such rights under Martial Rules. He carried forward from the case of Jibendra Kishora Achharyya Chowdhury v. Province of East Pakistan PLD 1957 SC 9 to Dosso's case (ibid) and from Dosso's case to the case of Muhammad Mehdi Ali Khan (supra) his argument that Fundamental Rights had completely extinguished. He laid down his reasoning in the following words:
1396. "Under the new legal order, any law may at any time be changed by President, and therefore, there is no such thing as a fundamental right, there being no restriction on the President's law-making power. Under Article 4 of the late Constitution (of 1956) there was a restriction on the power of the Legislature to make laws involving breaches of Fundamental Rights and invalidity attached to all existing laws, customs and usages having the force of law if they were inconsistent with any of the fundamental rights. The rest to determine the validity of the laws and the fetters on the power of the Legislature to make laws have both disappeared under the new Order. "
10. Cornelius, J. struggled hard to establish the concept of "natural rights" in Pakistan. Even though he was in a minority of one, his dissenting opinion stands as a statue of liberty to guide and inspire the lovers of democracy for all times to come. Viewed in this perspective, the message of A.R. Cornelius, J., contained in the cases of Dosso and Muhammad Mehdi Ali Khan (supra) provides the preamble to the arguments, viz. :-
1397. "(1) that by reference in a Constitution, the fundamental human rights become assured to all citizens, through the agency of the Executive, under a judicial sanction, but such a formulation does not deprive these rights of the higher sanction they possess as 'natural rights', under the law of humanity; and (2) even where the protective shield of the Constitution had been brushed aside by the imposition of Martial Law in Pakistan in 1958, yet by the words of the Laws Order, the duty was to govern the country as nearly as may be in accordance with the Constitution, therefore, to govern in violation of the Fundamental Rights to which the people were accustomed, as enacted law, and were entitled, as matter of natural law, should invite ultimate sanctions, beyond that of recourse to the Courts, namely, direct public action by way of protect or civil disobedience."
1398. He arrived at the conclusion that:
1399. "Beyond formulated Constitutional rights and legal sanctions for their enforcement, there are obligations, in favour of the citizens, resting upon the community to which he belongs and the administrative agencies of that community, to allow him his natural rights in full and these are supported by sanctions which it becomes justifiable for the community itself to apply when, either as a whole, or in a significant part, it is convinced that the 'social contract' cannot be maintained otherwise than by pressure on the administrative agency through protest or civil disobedience."
1400. Cornelius, J. had indicated in the second case that:
1401. "The same consequences were to be apprehended even if the full force of a social contract were not available, under a Martial Law Regime, particularly as a promise of governance in accordance with the late Constitution had been held out."
11. In the precedent of Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 a Full Bench of five learned Judges has examined the implication of insertion of Article 2A as a substantive part of the Constitution in the following paragraph:-
1402. "Article 2A makes the Objectives Resolution a substantive part of the Constitution. The Objectives Resolution inter alia provides that the sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust. The Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah. It goes on to provide for making adequate provisions for guaranteeing fundamental rights, safeguarding the interest of minorities and backward and depressed classes, and ensures the independence of judiciary. These ,high ideals were set out to be incorporated in the Constitution and on the basis of these guidelines the Constitution was framed and the laws must also be framed."
12. Again in Human Rights Cases: in the matter of 1993 SCMR 2001 another Full Bench of learned Five Judges noticed the effect of making Article 2A as substantive part of the Constitution:---
1403. "The fact is that some of the Articles fall within the scope of principles of policy but that would not make much difference because this Court has by now held in a number of cases that Article 2A read with the relevant clauses of the Objectives Resolution dealing with the Human Rights, Article 4, with Specified Human Rights; the Fundamental Rights, and the Principles of Policy when combined together do provide lawful vehicle for interpretation definition, refinement and enforcement of the Fundamental Rights enshrined in our Constitution. See the cases of Darshan Masih alias Rehmatay v. State PLD 1990 SC 513 and Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416."
13. Lastly, in Mahmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426, a Full Bench of seven Judges of this Court subscribed to the short order reproduced below:
1404. "For reasons to be recorded later, we pass following short order
(2) ???? What is the basic structure of the Constitution is a question of academic nature which cannot be answered authoritatively with a touch of finality but it can be said that the prominent characteristics of the Constitution are amply reflected in the Objectives Resolution which is now substantive part of the Constitution as Article 2A inserted by the Eighth Amendment.
(3) ???? The Objectives Resolution was Preamble of the Constitution made and promulgated in our country in 1956, 1962 and 1973. Perusal of the Objectives Resolution shows that for scheme of governance the main features envisaged are Federation and Parliamentary Form of Government blended with Islamic provisions. The Eighth Amendment was inserted in the Constitution in 1985, after which three elections were held on party-basis and the resultant Parliaments did not touch this Amendment, which demonstrates amply that this Amendment is ratified by implication and has come to stay in the Constitution unless amended in the manner prescribed in the Constitution as contemplated under Article 239. Article 58(2)(b) brought in the Constitution by the Eighth Amendment, which maintains Parliamentary Form of Government has provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which martial law could be imposed.
(4) ???? In the result the two Civil Appeals Nos.397-K of 1990 (Abdul Mujib Pirzada v. Federation of Islamic Republic of Pakistan), 399-K of 1990 ? (Haji Ahmed v. Federation of Pakistan and others), and three Constitutional Petitions Nos. 60 of 1996 (Mahmood Khan Achakzai v. President of Pakistan and others), 67 of 1996 (Habibul Wahabul Khairi v. Federation of Pakistan and others) and 68 of 1996 (Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan and others) are dismissed."
14. ???? It would, thus, be noted that the main features of the Constitution envisaged are Federalism, Parliamentary Form of Government blended with Islamic Provisions, I have, therefore, decided to examine the implication of Article 2A after having been made a substantive part of the Constitution on the suspension of the Fundamental Rights guaranteed by the Constitutional mandate.
15. In an Islamic State the sphere of Fundamental Rights is very wide. Unlike the Constitutions enforced in many countries of the world those rights are not relatable only to the inter se relationship between the State and the citizen, but not only they encompass the whole human life but cover his belief, prayers, conduct, social life, economy, politics, justice, war and peace. In point of law they regulate his whole human relationship in a mode that the State's prerogative in legislation has been limited to a bare minimum. Even this limited field of legislation has been conditioned by the further restriction that it shall not be in conflict with the Injunctions of Islam, namley., Qur'an and Sunnah of the Prophet Muhammad (p.b.u.h.).
16. It would, therefore, be noteworthy that the rights which have been conferred on a human being under the Islamic Injunctions besides forming part of the Constitutional mandate, are not only beyond the legislative restrictions and enforceable through the Courts of land are without any exception, of fundamental nature. These rights which have the element of Islamic mandate are not amenable to any change or subject to any usurpation by way of suspension for days muchless than for years together. Late Muhammad Salahuddin in his Treatise (Fundamental Rights) 2nd Edition published in January, 1978.at pp :135 and 136 has drawn a line of distinction between the Fundamental Rights and LeLal.RiLrhfs in the following paragraph:
17. Syed Sharifuddin Pirzada, learned counsel appearing on behalf of the Federation in his treatise "Fundamental Rights and Constitutional Remedies in Pakistan" has in Chapter X page 76 taken congnizance of "Islam and Fundamental Rights" and traced its origin in the following paragraph:
1405. "The Constitution styles the State as Islamic Republic of Pakistan and proclaims that the 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. By saying that the sovereignty belongs to Allah it is meant that the revealed Laws of God must reign supreme. Qur'an and the authenticated traditions of the Prophet constitute this divine law. This should not be confused with Theocracy. Theocracy (derived from the Greek 'theos', meaning God and 'Kratos' i.e. power) is a vague title attached to Governments or States in which the sovereign is supposed to be God or some other powers, who governs directly or through a sacerdotal class and the laws thereof are regarded as Divine Commands. Examples are the Jewish State under the Mosaic dispensation, the secular authority of the Papal See and to a certain extent the Government set up in the 17th Century England under Cornwell. Theocracy is identified with the endeavour so well-known from the history of medieval Europe to invest a priestly hierarchy with supreme political power, in which certain ecclesiastical authorities claim for themselves the right of law-making. In Islam there is no priesthood or clergy. Since every Muslim has a right to perform each and every religious function, no person or group can legitimately claim to possess any special sanctity by virtue of the religious functions entrusted to them. Islam, in the words of Justice Rahman, 'stresses individual responsibility for actions and denies the existence of an intermediary between man and his Maker'. In fact Islam was a revolt against all anthropomorphic implications in the realm of faith. This can well-explain the expressions 'une' the 'ocratic laique et egalitair' which Louis Gardet coined to characterise Islam, a peculiarity of expression revealing an inability to comprehend an ideology which is neither theocratic nor secular in the expressional sense which either of the term conveys. Dr. Germanus, a Hungarian Professor, clarified: 'Islam has never suffered from the shackles of a centralised church or a professional clergy. Islam recognised no ruling sect, tolerates no single despotic claimant to Allah's Regency on earth. Power can be vested only, in the people, the Umma, the whole spiritual community'. Quaide-Azam, while pleading for a Constitution of a democratic type embodying the essential principles of Islam; expressly declared: 'In any case Pakistan is not going to be Theocratic State to be ruled by priests with a divine mission. "
18. Sheikh Zafar Hussain in his Book 'The Reconstruction of Islamic Society', 1992 Edition has expounded Human Rights in the following paragraphs:-
1406. "Now coming to human rights which Islam guarantees apart from those stated heretofore with reference to the last Sermon of the Holy Prophet (s.a.w.), the undermentioned were drafted by a group of experts as follows:
(1) ???? all human beings are one family bound together being subject of the same God and having lineage from Adam, equal in human dignity, without discrimination of race, creed or colour. The right of living of all human beings is guaranteed forbidding partial or total genocide. Likewise abortions for non-medical reasons are inadmissible.
(2) ???? In a state of war, killing of non-participants, old men and women and children is not permissible. Wounded prisoners of war have the right to treatment and captives to food and shelter, destruction of civilian buildings are prohibited.
1407. -(3) ??? Men and women have not only the right to marry but in fact should in normal circumstances, live married life, as also for the reason that family is the foundation of a society's structure. Woman is equal in human dignity with man and has her own social status as well as the right to maintain her maiden name and property. Man is responsible for the sustenance of the family.
(4) ???? Every child has a right to nursery education, material and moral care by parents, society and the State. Every man has a claim on various educational institutions for religious and secular education to develop his personality and deepen his belief in God. Man is born free and colonialism being one of the most vicious types of human enslavement is condemned categorically.
(5) ???? Every man has right to fee movement and if persecuted to seek refuge in another country which should protect him.
(6) ???? Work within his capacity and with equitable wages is a right guaranteed by the State. Every one has a right to practise a legitimate trade, provided he does not monopolise, cheat or defraud the consumer. Every one has a right of legitimate ownership, either alone or in partnership but expropriation of property is inadmissible except for public benefit and against compensation, Confiscation is illegal.
(7) ???? Every one has the right to health and social care by the State which ensures him and his dependents a decent living. Every one alongwith his family has the right to live in security, honour and property. There should be no interference in his private life like spying upon and keeping him under surveillance. Responsibility is basically personal and the accused is innocent until his guilt is proved in a fair trial.
(8) ???? Every individual has freedom of expression within the principles of Shariah by every legitimate means. Freedom of society is prerequisite to guarantee fundamental human rights. Everyone has the right to participate directly or indirectly in the administration of his country's public affairs.
(9) ???? All hurfian beings are equal in the eye of law including the Head of the State.
1408. Human Rights and Sanctity of Human Life:
1409. Although right to live is recognised as one of the human rights in the UN Charter, yet due sanctity is not apparently attached to human life. As a consequence many people, including political leaders and freedom fighters are killed in the world by opposing groups and secret agencies. The Governments should provide security to all people living in their States and life should not be taken except by due process of law. The UN should take notice of assassination of political figures, leaders and heads of Governments and States and condemn such acts in the context of human rights. Human rights obviously embrace sanctity of human life and Islam is very emphatic in this regard. The Qur'an attaches great sanctity to life and Allah says: 'kill not the soul which Allah has forbidden except for a just cause'. At another place it says: 'killing a person is equal to killing of all men and whoever saves one life, it is as though he had saved the life of all men'. Therefore, inculcating human rights without ensuring the safety of human life against assassination through secret State Agencies will be a sad commentary on the sanctity of human rights."
1410. Then in his Book 'Islamic Concept of Human Rights' late Dr. S.M. Haider, in its first Edition observed at pp.52-53 as under:-
1411. "After tracing the origin of the rights 'l would like to analyze the Islamic concept of human rights. Islam embodies all basic principles of human virtue as enunciated by God Almighty. These virtues are determined by the guidance of God. God Almighty, while explaining the creation of Adam to Prophet Muhammad (peace be upon him) told him, 'and when thy Lord said unto the angels: Lo! I am about to place a viceroy on the earth" (2 : 30). Thus, Adam was not created as just a living being but as a Viceroy of God Almighty. This means that Adam was created to represent God on this earth. Naturally he must have been given some of the attributes of God his Creator; and the first attribute given to Adam was the soul and then knowledge. This was the beginning of guidance. Then this guidance kept on coming from God to mankind at various stages of the civilization. Whenever mankind went astray, God sent His messengers to guide them to the straight path the path of righteousness. Last of all. the messengers, came Prophet Muhammad (peace be upon him), who was given the guidance which was the sum total of what has been revealed on his predecessors, in line. In this connection, God says, "And unto thee have We revealed the scripture with their truth, confirming whatever scripture was before it and whatever over it (8 : 9). Again God says: "The messenger .believeth in that which hath been revealed him from his Lord and (so do) the believers. Each one believeth in Allah and His angels and His scriptures and His messengers--we make no distinction between any of His messengers ... ... (2 : 285). This way God establishes the universality of Islam. This claim of Islam is manifest when we are told that people before us were given guidance through scriptures. But when they have neglected the divine guidance they invited the wrath of God.
1412. It is said that Islam is the culmination of the process of revealed guidance from Allah, who says in Qur'an, 'This day I have perfected your religion for you and completed My favour unto you and have chosen for you Islam as religion' (5 : 3). When Islam was destined to be universal religion by Almighty Allah it should give guidance on the basic human problems of all mankind for all the times. The basic problems are:
(1) danger to life;
(2) danger to liberty; and
(3) danger to freedom and pursuit of happiness.
1413. To solve these basic problems of human beings, Islam has given clear guidance which has established what is called the human rights, like right to life, right to liberty and right to freedom in pursuit of happiness. These rights have been given to all without any distinction of caste, creed or colour under the golden principle of equality enunciated thus, "O mankind Lo! We have created you from one male and one female and have made you nations and tribes, so that you may know one another. Lo! the noblest of you in the sight of Allah, is the best in conduct ... ... ... "(49 : 13).
19. The Right to Life, Right to Liberty, Right to Freedom of Person, Freedom of Expression, Freedom of Association, Freedom of Religion, Freedom from Hunger, Freedom of Profession, Political Freedom, Equality before Law (Freedom from Injustice, the Pursuit of Happiness, Family, Marriage, Right to Maintain Children, and Right to Inheritance. Similar opinion has been expressed by Mr. M. Saghir Hasan Maasumi, Ex-Professor, Islamic Research Institute, Islamabad, in the book referred to above by late Dr. S.M. Haider.
1414. Syed Shamim Hussain QadriyJate Chief Justice of Lahore High Court in his treatise
1415. 27 and 2 44s variably enumerated the following Fundamental Right:
20. Late Maulana Abul A'ala Maududi in his publications 'Tathimat" has recounted the following Fundamental Rights at pp. 253 to 1268:
21. It would, thus, be noticed that we have developed an unfortunate trend over !t period of half a century of our independent national existence to rush to suspend the Fundamental Rights on one pretext or another. As soon as the country had tested its nuclear capability, the respondents, for no reason readily understandable, clamped a state of emergency under the cover of which firstly, the citizens of Pakistan were stripped off all the fundamental rights but later on only the Fundamental Rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25 were ordered to remain suspended. Even if, Proclamation of a State of Emergency was justified as we have held the suspension of Fundamental Rights were unwarranted a move which created fresh doubts about the intention of the Government. Not only the Government revealing the extent of its faith in the patriotism of ordinary Pakistanis, it was also insulting their intelligence unnecessarily. The learned Attorney-General had, of course, argued that in the first rush of excitement after the nuclear explosions, it did not have enough time to weigh these matters with the care they deserved. Worse, even when it had an opportunity to make amends, it thought fit not to do so. The President (which means the Government and the Federation) has modified the emergency order and restored some rights like the freedom to practise religion but the order carrying this direction does not touch the freedoms which have a practical bearing on every day life like the freedom from arbitrary arrest or the freedom of speech and association.
22. In the light of what has been observed above, I uphold the finding recorded by us in our short order dated 28-7-1998 for the reasons recorded herein above.
1416. (Sd.)
1417. MUHAMMAD BASHIR JEHANGIRI, J
1418. M.B.A./F-32/S ????? Order accordingly
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