FEDERATION OF PAKISTAN Versus GHULAM MUSTAFA KHAR
This petition for leave to appeal arises from a common judgment of the Lahore High Court concerning writ petitions filed by individuals convicted by Special Military Courts and Ex-Army Officers. The core legal question involves the scope of judicial review and the protection afforded by Article 270-A of the Constitution against actions taken by Martial Law Authorities, and whether such actions and orders are immune from challenge. The Supreme Court granted leave to appeal to consider whether Article 270-A validates and renders immune from challenge not only legislative measures like Martial Law Regulations, Orders, and President's Orders, but also every kind of action taken thereunder, noting that similar questions were already under consideration in other connected petitions. Consequently, the Supreme Court granted leave to appeal and stayed further proceedings pursuant to the impugned order pending the hearing of the appeals.
- Does Article 270-A of the Constitution of Pakistan 1973 validate and render immune from challenge every kind of action taken under Martial Law Regulations, Martial Law Orders, and President's Orders?
- To what extent is the jurisdiction of the High Court barred under Article 270-A regarding orders passed and acts done by Martial Law Authorities?
- Are petitions under Article 199 of the Constitution maintainable against orders passed and acts done by Military Authorities which are alleged to be mala fide?
- Article 270-A, Constitution of Pakistan 1973
- Article 199, Constitution of Pakistan 1973
- Constitution (Eighth Amendment) Act, 1985
ORDER
NASIM HASAN SHAH, J. --This petition for leave to appeal is directed against the common judgment passed by a Full Bench of three Hon'ble Judges of the Lahore High Court, Lahore in seven Writ Petitions on 18-11-1987 whereby in accordance with the opinion of majority it was held that: - . "all legal measures mentioned in Clause (I) of Article 270-A of the Constitution, having been validated cannot be subjected to judicial review. As regards the orders passed, proceedings taken and acts done in exercise of the powers derived from said legal measures the High Court jurisdiction is limited corum non judice, without jurisdiction, malice in law, and violation of the Constitutional provisions to the extent already stated. "
One of the Hon'ble Judges by a separate judgment went on to observe that petitions under Article 199 of the Constitution are maintainable not only in the above circumstances but also against orders passed, acts done and proceedings taken by Military Authorities, which are mala fide. In view of the above finding the learned High Court has directed that each case shall now come up for hearing for disposal on merits as per orders of the Chief Justice.
2. The background of the above order is that the respondent and others, who were petitioners before the High Court were tried by Special Military Courts, convicted and sentenced for different offences, except the petitioners in Writ Petition No.659 of 1986, who are Ex-Army Officers and were arraigned before the Special Courts constituted under Presidential Order 2 of 1982/CMLA Order 1 of 1982. In Writ Petitions filed by them before the High Court, the Writ Petitioners had inter alia assailed the validity of the actions taken against them by Martial Law Authorities, the constitution of the Courts which tried them, the authority of the Chief Martial Law Administrator/ President, to amend the Constitution, the powers of the Parliament to incorporate Article 270-A in the Constitution, validating the legal measures issued and acts done by the Martial law Regime; ouster of jurisdiction of the superior Courts and the constitutionality of the assent given by the President to the Constitution (Eighth Amendment) Act. 1985.
3. A pre-admission notice was issued to the learned Attorney General who objected to the maintainability of the petitions but the learned Judges of the High Court held that the petitions were maintainable in the limited circumstances set out in the order of the Court reproduced above. The Federation of Pakistan feeling aggrieved has, accordingly moved this petition for leave.
4. This Court has already granted leave to appeal to consider the question whether the provisions of Article 270-A introduced by the Eighth Amendment to the Constitution of 1973 has the effect of validating, protecting and rendering immune from challenge not only the M.L.Rs., M.L.Os. and President's Orders promulgated during the Martial Law period but also every kind of action taken thereunder in C.Ps. Nos.191-K/87, 231-K/87, 261-K/87, 288-K/87, 170-R/87, 181-R/87, 182-R/87, 232-R/87, 233-R/87, 234-R/87, 235-R/87 and 236-R of 1987 passed against orders of the Sind High Court. As the questions arising in this petition are somewhat similar, leave to appeal is also granted. This case will be heard alongwith appeals arising from the above mentioned petitions. Further proceedings in pursuance of the order impugned herein shall remain stayed meanwhile.
5. The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any, and put up for hearing in the month of February, 1988.
M.B.A./F-30/S Order accordingly