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P L D 1963 SC 486

FAZLUL QUADER CHOWDHRY
V/S
MUHAMMAD ABDUL HAQUE

Per Cornelius, C.J. –

CONSTITUTION OF PAKISTAN (1973), ARTICLES 141, AND 144:
(Constitution of Pakistan (1962) Articles 131, 132 & 134)

If it be assumed that the President, acting under Article 224(3) is a “Legislature” within the meaning of that term, as
used in Article 133 (Article 141 of 1973) then it falls to be observed that the President’s powers in that behalf were
terminated, by lapse of time, on or about the 7th day of September, 1962. From that date onward, there was consequently no “Legislature” to discharge the responsibilsity of satisfying itself, ukpon the question being raised, that it had acted within its powers. If then there had been excess of power, must it be assumed that the Constitution provide no means of correction? The true aspect of the matter would be that the rule of exclusive “responsibility” and the bar of jurisdiction by which it is supported, would both fall out of the way, so that the jurisdiction of the superior Courts would at once be attracted. [p.504]E

Per S.A. Rhman, J. –

The ban on judicial review of laws imposed by Article 133 (Article 144 of 1973) Constitution of Pakistan is not an absolute one, when its provisions are considered along with other provisions of the Constitution (i.e. Articles 134, 142 and 217). It seems to me therefore that the view taken by the high Court with regard to the scope of Article 133 (Article 144 of 1973) as excluding the President functioning under clause (3) of Article 224 (267 of 1973), hs a great deal to to command itself. While functioning under that clause the President would not be directly dealing with the passing of legislation on which a possible conflict might arise between the Centre and Province but would concern himself with the machinery provisions of the Constitution itself. [p. 516]I

Per Fazle Akbar, J. –

Articles 131, 132, 133 and 134 of the Constitution of 1962 (Articles 141, 144, and 143 of 1973) define the respective field of legislation of the Central and provincial Legislatures. It (The Constitution) also ensures by Article 133 (2) that if a Legislture acts in excess of its power, it shall not be questioned jby a Court. If the Court finds such law warranted by the Constitution, they are bound to pronounce it valid. They are not to consider whether the effect of their decision will be to annul good law or to uphold the bad one. But if it is said that the effect of the Article 133 is to deprive the superior Courts of their power to see whether the impugned Act violates the Constitution or not. I am unable to accept such contention because I do not look upon the provision made in this Article as one which either in language or in the intention of the Constitution-maker was meant to cut down at and override the primary rights given to the Courts under Article 58 (185 of 1973) of the Constitution. [p.520]R

Per Kaikaus, J. –

Article 133 was intended only to prevent an objection on the ground that an exercise of legialtive power was not in accord with Article 131 or Article 132. The intention of the framer of the Constitution was that the question as to whether a matter was within the Third Schedule or outside it should not be agitated n the Courts and should be left to the Legislature itself. Had there been no apportionment of legislative functions between the Centre and the Provinces i.e., if there was only one Legislature in Pakistan I believe Article 133 would not have been put in at all.The words “power to make law” used in Article 133 have reference to the power to make laws in Articles 131 and 132 and have the same connotation in Article 133 as they have in Articles 131 and 132. As I have already said these Articles are to be read together. So construed Article 133 will only bar an enquiry into the question whether a matter was within the Third Schedule or outside it or whether the impugned legislation was inconsistent with Article 131 or 132. All other questions will remain within the jurisdiction of the Courts. Article 134 it may be pointed out had become necessary because both Legislatures may legislate on the same subject and there has to be some forum for a decision of the question as to which law is to prevail. [p.528]Z

Per Hamoodur Rahman, J. –

The scheme of ouster of jurisdiction……..under the present Constitution, is only limited to the grounds specified in these Articles 6(2), 8(2) & 133 (Articles 8, 30 & 1244 of 1973) and there is no general ouster of the jurisdiction of the Courts from examining the constitutionality of a law on any other ground. [p. 540]RR

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