PLD 1988 SC 416
Per Muhammad Haleem, C. J.
(a) Constitution of Pakistan (1973), Arts. 2(c), 7, 8, 184(3), 270-A(1), 17, 16, 15, 18, 19, 31, 63(g) & 199(1)(c)-
The object of promulgating this Act was to remove the ban in order to enable the people to form political parties and to seek election with the support of political parties as before the Act there was a ban on the formation of a political party by reason of the political Organisations (Prohibition of Unregulated Activity) Ordinance, 1962, and also the prohibition contained in Article 173 of the Constitution against a person holding himself out as a member of a political party or seeking support from such political party at the time of election without the permission of the Central Legislature. [p. 467] A.
From the consideration of these cases, it is clear that the vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and oppressive manner. On this view of the matter, the contention of the learned Attorney-General is devoid of any merit
[p. 485] E.
Having held so, the question which now requires to be considered is whether section 3-B of the Act is ex facie discriminatory as by reason of non-registration of the party its principal activity namely “to participate in an election to a seat in a House of Parliament or a Provincial Assembly or to nominate or put up a candidate at any such election” is invaded to such an extent as to destroy its political existence. Reading subsections (1) and (6) of section 3-B of the Act together the conclusion is irresistible that in the case of non-registration the penalty automatically follows and the political party suffers its political extermination. The learned Attorney-General, in reply to it, referred to section 3-C of Act and contended that if the party had not applied for registration even then on the basis of the questionnaire issued by the Election Commission and the answers given to it, the party could be eligible to participate in the forthcoming elections provided the Election Commission was satisfied that it fulfilled the requirements of subsection (3) of section 3-B of the Act. [p. 486] F.
The case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence. [p. 493] J.
“In all systems of law which cherish individual freedom and liberty, and which provide constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance.” [p. 493] K.
Having regard to the connotation of the words “public importance” it will be for the Supreme Court to consider in each case whether the element of “public importance” is involved in the enforcement of the Fundamental Rights irrespective of the individual’s violations or the infractions of a group or a class of persons.[p. 492] L.
obviously, there was no independent consideration of Article 184(3), and the finding of this Court specifically related to the objections raised. In my analysis of this provisions, I have held that as this provision is open-ended, the proceedings could either be maintained by an individual whose fundamental rights are infracted or by a person bona fide alleging infracting of the fundamental rights of a class or a group of persons, as there is no rigid incorporation of the notion of “aggrieved person”. Therefore, the dictum laid down in this case and so also in the case of Manzoor Elahi cannot be read as in conflict with my interpretation of this provision. [p. 493] M.
as a result of the above discussion, I am of the view that the learned Attorney-General is not Correct in contending that it is only enforcement of the fundamental rights under Article 184(3) of the Constitution as by reason of the fact that the two provisions are co terminus. [p. 493] N.
It is regrettable to note that the High Court has surrendered the management of the case to the sweet will of the counsel who was taking dates at his convenience without making any serious effort get the matter admitted to regular hearing, and the High Court, in turn, acquiescing in it, dillydallying and shirking from its duty towards a pending cause by accommodating the counsel. Therefore, there was, for a period of a year and eight months a failure on the part of the High Court to pass any order either admitting the petition to regular hearing or rejecting it in limine, and, for that matter, even on the date of hearing of this petition it was not known as to whether it was admitted or not. On these facts, the learned Attorney General has invoked the principle of practice as to the choice of the forum and so also the vested right of the opposite party to come in appeal to this Court as material considerations for this Court to keep its hands off from hearing the petition. As the High Court was not legally seized of the dispute as a result of an order admitting it, it remains to be seen to what extent the practice can be followed which without doubt is salutary and of long standing. [p. 494] O.
Before I d well on this contention, I would like to give a short legislative background of this Article for a better understanding of the indemnity of law available in the constitutional provision. By the second Martial Law imposed by General Yahya Khan, the 1962 Constitution then in force was abrogated and in the interregnum the legal Framework Order which provided the framework for the enacting of the constitution held the field and during the continuance of Punjab (P L D 1972 S C 139) overruled State v. Dosso (P L D 1958 S C 533), and held General Yahya khan to be an usurper, his regime to be illegal and not competent to enact laws. [p. 498] U.
Reading Article 270-A(1), I find that it is in two parts joined together by conjunctive “and”. The first part deals with the proclamation of the fifth day of July, 1977, legal instruments and all legal measures including Martial Law Regulations and Martial Law Ordinance made between the specified dates which are “hereby affirmed, adopted and declared. Notwithstanding any judgment of any Court, to have been validly made by competent authority” and the second part deals with the ouster of the jurisdiction of Courts in terms: “notwithstanding anything contained in the Constitution, shall not called in question in any Court or any ground whatsoever.” [p. 507] V.
Adverting to the first part, it will be necessary to examine the meaning of the specific words used in the constitutional provision. In Ballentine’s Law Dictionary. Third., page 36, the word “adopt” is defined to mean “to approve, to take as one’s own that which was not so before”. In Black’s Law Dictionary, Fifth Edition, Page 45, it means “to make that one’s own act which was not so originally, to accept; consent to, and put into effective operation; as in the case of constitutional amendment, ordinance, Court rule, or by-law”. In Chamber’s Twentieth Century Dictionary at page 16, “adopt” means “to take as one’s own. To endorse, approve”. The word “affirm” in the Chamber’s Twentieth Century Dictionary is defined at page 20 to mean; “to assert confidently or positively, to ratify (a judgment); to confirm or stand by”. In Black’s law Dictionary, Fifth Edition at page 55, this word is defined to convey the meaning: “to ratify, make firm, to make a solemn and formal declaration”. In Ballentine’s Law Dictionary, Third Edition at page 46, this word carries the same meaning, i.e., “to declare solemnly, to confirm or ratify a statement, belief, opinion decision or judgment”. The word “declared” was also used in the earlier constitutional provisions and also in this provision. It means “to make known, manifest..; to announce clearly some opinion or resolution”.
Having regard to the meanings which the words “affirm”, “adopt” and “declare” convey, it is manifest that the legislature owned the legal instruments and legal measures made between the specified dates as if enacted by itself so as to give validity and competency to those legal instruments and measures. The principle of ratification was here adopted an such validity and competency was proclaimed. This principle belongs to the realm of the law of agency: “in the law of principal agent, the adoption and confirmation by one person with knowledge of all material facts, of an act or contract performed or entered into in his behalf by another who at the time assumed without authority to act as his agent. Essence of “ratification” by principal of act of agent is manifestation of mental determination by principal to affirm the act, and this may be manifested by written word …” (See Black’s Law Dictionary, Fifth Edition, p.1135). In this respect was a departure from the protection earlier given by the two constitutional provisions, namely Article 281(1) of the Interim Constitution and Article 269(1) of the 1973 Constitution.
The next expression in this part which needs consideration is “notwithstanding any judgment of nay Court”. Obviously this expression could not have any reference to Asma Jilani’s case as its effect was taken away by Article 28(1) of the interim Constitution (see Zia-ur-Rehman’s case) and it could only refer to Begum Nusrat Bhutto’s case in which the 1973 Constitution was held to be the supreme law of the land subject to certain portions having been held in adeyance and the Chief Martial Law Administrator to have validly assumed power by means of extra-Constitutional steps in the interest of the State and for the welfare of the people. But subsequently this judgment was superseded by the Provisional Constitution Order and its effect was therein nullified. It was, therefore, to avoid the effect of that judgment after the lifting of the Martial Law and the revocation of the Provisional Constitution Order and the Laws (Continuance in Force) Order, 1977, that the expression “notwithstanding any judgment of any Court” was again used.
Coming now to the second part, the non obstante expression “notwithstanding anything contained in the Constitution” in the context Constitution shall not be an impediment in ousting the jurisdiction of the Court qua the validity and competency of the legal measures. While on the one hand by this device the legislature has chosen to give wholesale validity and competency to the said legal measures as if it had enacted them and on the other by neutralising the constitutional impediments so as to render them immune from any attack on their validity and competency on any ground whatsoever. Having held so, the dictum laid down in Saeed Ahmad’s case will be fully applicable. The ouster of jurisdiction is accordingly complete and the Court is left with no jurisdiction to strike off the laws without, in any way, affecting the judicial power to interpret the constitutional provision, which cannot be denied so long as the Court exists. Here I would add the admirable words of Chief Justice Hughes of the Supreme Court of United States of America: “We are under a Constitution, but the Constitution is what the judges say it is…”
It is difficult to confine the expression “notwithstanding anything contained in the Constitution” only to the maker of the legal measures as contended by the learned counsel for the petitioner as this constitutional provision has to be read as a whole and both its parts have to be harmonised to give full meaning and effect to it. [p. 508] W & X.
“In spite of a Judge’s fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application this rule, for law cannot stand still nor can the Judges become mere with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule.” [p. 496] Q.
I may here point out that when the right guaranteed under Article 17(2) is exercised in the context of the other Fundamental Rights, it is then that those limitations would be applicable but not otherwise. but the right standing alone cannot be subject to other limitations apart from what it prescribed therein.
As already held Article 17(2) of the Constitution contains the declaration of the right and the restriction in its exercise as authorised by the Constitution. Thus it is not an absolute or uncontrolled liberty and is accordingly limited in order to be effectively possessed. The restrictive clause is exhaustive and is to be strictly construed as earlier pointed out in Sakal Papers (P) Ltd. v. Union of India (AIR 1962 S C 305): [p. 524] YY.
The constitutional validity given by Article 270-A(1) as it achieves to give validity to laws enacted between a specified period. This validity is, therefore, of a pattern of a curative or validating statute and must be understood and be operative in that context. In Black’s Law Dictionary, Fifth Edn., P.1390,validating statute is stated to be: “A statute, purpose of which is to cure past errors and omissions and thus make valid what was invalid, but it grants no indulgence for the correction of future errors”. In Pandit Ram Parkash v. Smt. Savitri Devi (A I R 1958 Punjab 87), it was held that curative and validating statutes operate on conditions already existing and can have no prospective operation.” In Moti Ram v. Bakhwant Singh (A I R 1968 Punjab and Haryana 141), it was held: “A curative act is a statute passed to cure defect in a prior law and has prospective operation”. In Sutherland on Statutory Constitution, Vol.II. 3rd., it is stated: “Retroactive operation will more readily be ascribed to legislation that is curative or legalising than to legislation which may be disadvantageously though legally, affect past relations and transactions”. In Amalgamated Coalfields, Calcutta v. State (A I R 1967 M.P. 56), it was held:
“An invalid Act can be validated by subsequent statute of the competent legislative authority, if the validating statute authorises the doing of the act at the time when it was done. In the absence of such authorisation, the validation will be futile as that will only amount to an attempt to exercise a power ex hypothesi, which does not exist.”
Having regard to the purpose of validation, the defects in the legal measures when enacted during the specified dates had to be cured in the State of things as they existed which, of course, did not include any violation of a constitutional norm; and validity in this context could not b said to have achieved anything more than this. This is not all. [p. 509] Z.
If the Legislature itself did not consider it appropriate to give protection to the existing laws against violations of Fundamental Rights then this cannot be achieved by taking aid of this expression from Article 270-A(1). This legislative intention is clear from the progress of the Bill of the Constitution (Eighth Amendment) Act 1985 Bill (N. A. Bill No.13 of 1985) in the National Assembly until it become an Act of the Legislature.
[p. 510] AA.
The deletion of the Political Parties Act manifestly shows the intention of the Legislature not to give validity against constitutional violations to the laws except those which are specified in the Seventh Schedule. This was because of the Legislature’s awareness of the constitutional limitation on its power to make laws which take away or abridge the Fundamental Rights (Article 8(2) and the validity, therefore, granted could not violate this limitation. [p. 511] BB.
The latter constitutional provisions follow the same pattern while in Article 270-A there is insertion of sub-Articles (3) and (6). Sub-Article (3) continues in force all laws which survived the repeal until altered, repealed or amended by the competent authority while sub-Article (6) categorises these laws into two categories: those specified in the Seventh Schedule and those not so specified. Those so specified could only be amended in the manner provided for amendment of the Constitution while the others could be amended by the appropriate Legislature in the manner provided for amendment of such laws. In effect, therefore, a constitutional status was given to the specified laws while the others were treated as ordinary laws. There was no such distinction in Articles 281 of the Interim Constitution or 269 of the 1973 Constitution. However, it will be here convenient to refer to sub-Articles (1) and (3) of Article 280 of the Interim Constitution. While sub-Article (1) continues in force all existing laws until altered, repealed or amended by the appropriate Legislature, sub-Article (3) repeals all Martial Law Regulations and Martial Law Orders except those which are specified in the Seventh Schedule and deemed to have become an Act of the appropriate Legislature. By the proviso to this sub-Article, it was provided that no Bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders so specified shall be introduced or moved without the previous sancition of the President. Sub-Article (1) of Article 268 of the 1973 Constitution further provides that “subject to the Constitution” all existing laws shall continue in force until altered, repealed or amended by the appropriate Legislature. Sub-Article (2) of this Article, however, gives protection to those laws which are specified in the Sixth Schedule in terms that they cannot be altered, repealed or amended without the previous sanction of the President. None of these constitutional provisions are alike sub-Article (3) and sub-Article (6) of Article 270-A of the 1973 Constitution. While sub-Article (3) of Article 2nd of the interim Constitution gives protection to the Martial Law Regulations and Martial Law Orders specified in the Schedule by curtailing the power of the Legislature to amend it without the previous sanction of the President, sub-Article (6) of Article 270-A makes no mention of Martial Law Regulations or Martial Law Orders but only President’s Orders and Ordinances, which cannot be amended or repealed except as by the procedure prescribed for amendment of the Constitution.
The textual changes of Article 270-A of the 1973 Constitution cannot be ignored while considering the argument of the learned Attorney-General which clearly reflect the intention of the Legislature not to treat laws not specified in the Schedule immune from attack on the ground of violation of the constitutional norm. the words “subject to the Constitution” which makes the laws subordinate to the Constitution even if they were not used in sub-Article (3) of Article 270-A of the 1973 Constitution will not make any difference because of the textual changes in this Article which clearly makes a distinction between laws which are amenable to attack and those which are not. Even otherwise without these words the ordinary laws are subordinate to the Constitution. It will also serve no useful purpose if this sub-Article is read in conjunction with Article 270-A as the latter deals with conferring validity on the legal measures and ouster of jurisdiction of Court while the former concerns itself with the continuance of the survived laws. In construing constitutional provisions the expression used in one provision cannot be lifted and superimposed on the other provision which is not only against the canons of interpretation but also makes the reading of the provisions as a whole discordant. [p. 512] CC.
There is, however, no repeal and re-enactment of the repealed Act to make the intention as proposed to be manifest. Article 270-A is a new provision which is differently worded in many respects from the earlier provisions giving constitutional validity. The principle of omission from the repealed Act cannot be applied here particularly in the context of sub-Article (6) which manifests a clear intention to bifurcate the existing laws into two categories; one set getting constitutional protection by being specified in the Seventh Schedule and the other left over as ordinary laws amenable to correction by the ordinary procedure applicable to the amendment or repeal of the law by Legislature. [p. 513] DD.
While considering this question it should be borne in mind that the legal measures which have been given validity were enacted during the specified period and not all have survived so as to continue in force until altered, repealed or amended by the competent authority as enacted by sub-Article (3) of Article 270-A. if the legal measure is not itself in existence how can it operate prospectively. The test of the legal measures being prospective must be equally applicable to those which have survived and those which have not survived which is not the case here. In this connection sub-Article (3) of the Article 270-A is itself a clue to the prospective operation of laws which are saved as it gives to them a continuity but not to those which are repealed. This is also against the principle of validation which only remedies the defect retrospectively but does not case for any future operation of the law. [p. 513] EE.
This contention hits at the proviso to Article 270-A(1) which limits the power of the President and the Chief Martial Law Administrator to make only such Martial Law Regulations and Martial Law Orders after the thirtieth day of September, 1985, which would facilitate or were incidental to the revocation of the Proclamation of the fifth day of July, 1977. Therefore, the Legislature only gave validity to this extent and if they were to survive and operate as Martial Law Regulations and Martial Law Orders it would be against the purpose of legislation for in that event it would entrench the Martial Law rather than to facilitate the revocation of the proclamation of the Martial Law. There is also the further reason that if the Martial Law Regulations and Martial Law Orders were to survive then they would be in conflict with some of the paragraphs of this Order and in particular paragraph 5 which could not be the intention of the maker.
In my view, in the expression “the provisions of this Order shall have effect”, the key words are “shall have effect”, which Second Ed., Volume 3, p.2217). The purport of using these words is to give legal protection to the several provisions of the Order as a result of the change-over from Martial Law to rule of law under the Constitution. This device was earlier adopted for the same purpose so as not to leave a vacuum. Accordingly, this submission of the learned Attorney General is untenable. [p. 514] FF.
Elections are a recognised means of providing succession in leadership. The problem of political succession is common to all Parliamentary democracies. At a minimum an election provides a legal means for validating a claim to govern. It is a party system that converts the results of a Parliamentary election into a government. The opinion of the individual voters is further curtained and controlled by the working of the party which has organization which controls the elections, educates its members in the policies and professions of the party and exercises discipline over its members so as to prevent defection.
Having highlighted the importance of political parties in a Parliamentary democracy such as envisaged in the Constitution , the framers of the Constitution while guaranteeing the right to every citizen to form associations or unions also provided separately “to form of be a member of a political party”, as the existence is essential for the maintenance of other rights guaranteed to the individuals by the Constitution. To impress its importance, I may here quote the words of Lord Denning in his book “Road to Justice”.
“if men are ever to be able to break the bonds of oppressions or servitude, they must be free to meet and discuss their grievances and to work out in unison a plan of action to set things right.”
[p. 518] KK & LL.
While the rights guaranteed under subject to “any reasonable restrictions imposed by law in the interest of morality or public order”, sub-Article (2) guaranteed “the right to form or be a member of a political party” with the further obligation to words “sovereignty or integrity of Pakistan” were added in sub-clause (1) after the words “in the interest of ” and before the words “public order and morality” by the Constitution (Fourth Amendment) Act, 1974 (33 of 1974), sub-Articles (2) and (3) were amended in its present form. [p. 518] MM.
“The Constitution, therefore, guarantees to every citizen, who is not in the service of Pakistan, the right to form a political party or to be member of a political party and this right is subject only to reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan.”
“it will be further noticed that in the original Article 17, the only power given to the State was to impose reasonable restrictions by law on the right of association in the interest of morality or public order and the right to form a political party was only hedged in with the condition of accounting for the source of its funds, but now it has been further provided that reasonable restrictions may also be imposed by law in the interest of the sovereignty and integrity of Pakistan.”
[p. 518, 519] NN & OO.
Article 17(2) visualises plurality of political parties and so does the definition of the “Political Party” in the Act as plurality has a direct bearing to the Parliamentary system of Government. This right has a positive and a negative aspect. The words “right to form” in this sub-Article is not only confined to the commencement of association but the right includes the right of continuance of the association as well. (See State of Madras v. V.G. Row, A I R 1952 S C 196). It also includes a right not to alter by law its composition so as to the association without the consent of the members nor can any member be compelled to withdraw from the membership of the association. The right also implies the right to refuse to belong to any political party if a person so desires. Here it is also necessary to emphasise that the conjoined rights of an association if it is formed of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity, i.e., national integration and social cohesion by creating an egalitarian society through a new legal order. [p. 419] QQ & RR.
While raising this submission the learned Attorney-General failed to notice that this Order was an existing law under sub-Article (3) of Article 270-A and was not protected either under sub-Article (6) of this Article nor was specified in the First Schedule under Article 8(3) (b) of the Constitution. Article 2 of this Order places it higher than the Constitution by the use of the words “shall have effect” which mean shall have legal effect, while Article 3 is worded so as to make it a substitute of Article 17(2) of the Constitution. It provides additional constraints apart from sovereignty or integrity of Pakistan. Upon the revival of the Constitution the Fundamental Rights were also revived including Article 17 without any amendment. Article 17(2) was, therefore, a higher norm than this Order which could not prevail as against it in spite of the enacting words “notwithstanding anything contained in the Constitution.” It can only co-exist as a subordinate legislation if it is consistent with the Fundamental Right. Abdul Wali Khan’s case has confined the restrictive clause to sovereignty or integrity of Pakistan. This being so other specified constraints are outside the purview of Article 17(2) and cannot operate to override the fundamental norm; and as President’s Order No.20 of 1978 is any repeal by implication arises. What I find is that this Order is the basis for extensive amendments in section 3 and the other provisions of the Act by Ordinance 41 of 1978. Before the amendment of this section the only words which found place in it were “sovereignty or integrity of Pakistan” which were inserted in the light of the constraints in Article 17(2) of the 1973 Constitution. Sections 3-A and 3-B of the Political Parties Act, 1962, were inserted by Ordinance 42 of 1979 on 30-8-1979 and 3-C by Ordinance 53 of 1979 dated 8-10-1979. Section 3-B was further amended by Ordinance 52 of 1979 promulgated on 27-9-1979. President’s Order 20 of 1978 by its status as being an ordinary law cannot give any protection to the impugned provisions of the Political parties Act as against Fundamental Right 17(2). Therefore, even if it co-exists with the Political Parties Act, 1962, it is of no effect although it remains on the statute book.
[p. 524] XX.
I may here point out that when the right guaranteed under Article 17(2) is exercised in the context of the other Fundamental Rights, it is then that those limitations would be applicable but not otherwise. But the right standing alone cannot be subject to other limitations apart from what is prescribed therein.
As already held Article 17(2) of the Constitution contains the declaration of the right and the restriction in its exercise as authorised and is accordingly limited in order to be effectively possessed. The restrictive clause is exhaustive and is to be strictly construed earlier pointed out in Sakal Papers (P) Ltd. v. Union of India (A I R 1962 S C 305):
Abdul Wali Khan’s case is also to this effect as earlier held. Therefore restrictions imposed by law must confine to the constraints set out in Article 17(2). [p. 524] ZZ.
The learned Attorney-General next contended that the term “public order or morality” as occurring in sub-Article (1) of Article 17 should also be read as individual limitations in Article 17(2). In sub-Article (1) of Article 17, the words “public order” is mentioned in addition to the expression “in the interest of sovereignty or integrity of Pakistan.” I have already held that the above expression includes public order when it undermines or is likely to undermine the security and solidarity of the State. I may also add here that it will also include prejudicial activities such as:
Agitating for secession of the Provinces from Pakistan disrupting or threatening to disrupt the sovereignty, integrity. Unity or security of the nation, the harmony between different sections of the people;
Any scheme to overthrow the Government by force or to create internal disturbance or the disruption of public forces.
As the phrase “public order” is separately used, it has to be construed in the ordinary context as being synonymous with public peace, safety and tranquillity. Public order is an elemental need in any organized society, and no association can flourish in a state of disorder. In Cantwell v. Connecticut, (1940) 310 US 296 at page 308, it was held by the American Supreme Court. [p. 524] ZZ & AAA.
The word ‘public order’ is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order and of security of State. Law and order represents the Largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State. (See Ram Manohar v. State of Bihar, (1966) S C R 709). It has bot been incorporated as a separate limitation apart from being a constituent of the expression “sovereignty or integrity of Pakistan” in Article 17(2) of the Constitution. Therefore, it cannot be read into it as it would amount to re-writing the limitation in the Constitution. [p. 525] BBB.
This decision is an illustration of the fact that the limitation cannot be enlarged to admit other grounds on any theory of police power.
In common parlance the word “morality” occurring in Article 17(1), is far more vague than the word decency. The difficulty of fact that not only does the concept of immorality is enhanced by the fact that not only does the concept of immorality differ between man and man, but the collective notion of society also amazingly in different ages. All that can be said is that the antonym of the word “morality” according to the existing notion depends upon acts which are regarded as acts of immorality by the consensus of general opinion. However, it may be pointed out that owing to ethnic, cultural and even physiological difference, it is not possible to formulate a universal standard of morality. Thus notions of morality vary from country to country and from age to age and the international community has not yet been able to settle any common code of morality. This is because like all other social ideas, ethical ideas are largely shaped or influenced by the exigencies of a particular society. In Crown v. Saadat Hassan Minto (P L D 1952 Lah. 384), Muhammad Munir, C. J., while considering the meaning of the words morality and obscenity at page 386 held: “Morality and obscenity are comparative terms and what is obscene or immoral in one society may be considered to be quite decent and moral in another. While considering the question whether certain words or representations are obscene or not, one has to apply standards that are current in the society in which those words have been uttered or representations made.”
It is difficult to accept how the word “morality” can be read as a separate limitation in Article 17(2) when there is a conscious omission of it as a limitation in the sub-Article and on the same rule as stated earlier it will be outside the scope of limitation unless the expression “sovereignty or integrity of Pakistan” itself includes it as its constituent. [p. 526] CCC.
In my view the Holy Quran itself is the guide for eliciting the meaning of the word “morality”. In Ayat152, Sura Al-Anam (VI), it is ordained:
(Draw not near to shameful deeds, that which be apparent and that which be concealed-English Translation by S.V. Mir Ahmed Ali, R.M.T. Publications, Karachi, 1977, p. 319). This being the moral code, every Muslim is enjoined to obey it. This verse is the touchstone of what is moral and what is immoral. Necessarily, morality is part and parcel of Islamic Ideology of Pakistan and included in the expression “Integrity of Pakistan”. Therefore, not only individually but also collectively Muslims have to live within an exclusively moral framework as enjoined by the Holy Quran and the Sunnah. No civilized society can deny this standard of morality. The concept of democracy in our Constitution should, therefore, be regarded to be imbued with individual and collective morality as according to Islam (Holy Quran and Sunnah). It goes without saying that morality provides the basis for the society’s spiritual values and in terms of democracy-freedom, equality, tolerance and social justice. Collectively the political parties are now expected to protect public morals in the same way as other legal institutions protect public truthfulness and public symbols of authority. To leave the political parties entirely free to do as they please is to suggest that morality does not matter. A situation like this might prove ultimately subversive to the fabric of the State in the maintenance of the law and order. Therefore, political parties should conform to stringent obligations of high ethical standard.
Article 17(3) as worded requires every political party to account for the source of its funds in accordance with law. The direction is mandatory. The purpose obviously is to seek out foreign-aided parties or others whose activities are prejudicial to the interest of sovereignty or integrity of Pakistan as the source of funds provides a guideline amongst others, in determining the true character of a political party and the nature of its activities. The source of funds also gives a clue as to the manner in which the funds are collected and also identifies those who subscribe to it so as to assess not only the financial position of the political party but also that the funds are not collected in an unlawful manner.
[p. 526, 527] DDD, EEE & FFF.
In my view the words “account for the source of its funds” would also include the expenditure as that provides a check for determining actual amounts received and disbursed in the context of the political activities carried on as to whether the funds are being utilised for lawful political activities or for promoting prejudicial activities against the sovereignty or integrity of Pakistan. The rendition of accounts for audit, therefore, cannot be regarded as an unreasonable restriction or outside the ambit of this sub-Article. [p. 527] GGG.
While raising this contention, the learned Attorney-General omitted to notice that Article 17(2) as framed was amended by the Constitution (First Amendment) Act, 1974, in the exercise of the derivative power to amend the Constitution as given by Article 238 of the Constitution and this sub-Article itself provides for enacting law in the context of reasonable restrictions. It was not an ordinary legislation in regard to Item No.58 of the Fourth Schedule so as to attract the aid of Item No.59 for legislating incidental or ancillary matters in regard to this enumerated Item. The approach is thus misconceived. However, he relied on certain decisions to substantiate his point which I now propose to consider.
[p. 528] III.
There cannot be any doubt as to the meaning of the words “in the interest of” and the words “public order” but as the words “public order” were not separately mentioned as a limitation in Article 17(2) as was the case in the above-cited decisions, the words “public order” are only referable to aggravated forms of national upheavals which endanger the very existence of the State. [p. 531] JJJ.
Reading Article 17(2) of the Constitution as a whole it not only guarantees the right form or be a member of a political party but also to operate as a political party. As earlier held, the words “right to form” is not only confined to its formation but to its function as a political part. The political party, according to its texture, of being an aggregate of citizens composing the party can exercise the other rights guaranteed under the Constitution like an individual citizen. Again the forming of a political party necessarily implies the carrying on of all its activities as otherwise the formation itself would be of no consequence. In other words the functioning is implicit in the formation of the party. (See the opinions of B.Z. Kaikaus, J., and Cornelius, C.J., in Abul A’la Maudoodi’s case). This being so, the Political Parties not being a higher law than the Fundamental Right itself, cannot override or prevail over or be superimposed to make the right operational. The functioning is also explicit from the limitation itself which makes prejudicial activities against sovereignty and integrity of Pakistan actionable. This being so, I fall to comprehend as to how the Political Parties Act which not being a higher law than the Fundamental Right itself can override or prevail upon or be superimposed to make the right operational. It is the guarantee of the right itself which gives it the authority to exercise it. In formulating this argument the learned Attorney-General omitted to notice that the Political Parties Act was enacted on 16th July, 1962, under Article 173 of the 1962 Constitution before the insertion of the Chapter relating to the Fundamental Rights and there was no such provision like Article 17(2) even when these Fundamental Rights were provision like Article 17(2) even when these Fundamental Rights were incorporated in that Constitution. It was, therefore, that this Act incorporated in that Constitution. It was, therefore, that this Act provided for the definition of political party, the constraints, the remedial provision and the scope of the activities of a political party Article 17(2) was inserted for the first time in the 1973 Constitution and came in its present form by the Constitution (First Amendment) Act, 1974. This sub-Article now authorises the formation of a political party or any person to be its member and provides constraints to control its activities. In this context, it cannot be argued that it is the Political Parties Act which makes the exercise of this right operational.
The right to form or be member of a political party is not an absolute right but is subject to reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan. The State can, therefore, by law impose reasonable restrictions in the exercise of this right in the interest of sovereignty or integrity of Pakistan. The Political Parties Act is the law falling in this category and the question for consideration is as to how far its provisions can be question for consideration is as to how far its provisions can be regarded as reasonable restrictions in the exercise of this right. Therefore, if the right is infringed the only thing which can save the impugned law from constitutional invalidity is its reasonable restrictions in the exercise of the right. Equally this law cannot curtial the exercise of the right on any ground outside the scope of reasonable restrictions. This much is also clear that the presumption is always in favour of the constitutionality of an enactment and the burden is upon the person who attacks it to show that there has been a clear transgression principles. Once the person succeeds in showing that the impugned law prima facie violates the right being outside the scope of reasonable restrictions the onus shifts on the State to show that the legislation comes within the permissible limits of reasonable restrictions. [p. 531] KKK.
Here it is necessary to notice the apprehension that “Islamic Ideology” or “morality” or “maintenance of public order” in the context of sections 3(1) and 6(1) of the Act are liable to be misused. One in-built safeguard against misuse is that, as being interpreted and held in this judgment, no scope would be left for the penalty, interim or otherwise, to be imposed except by the highest judicial forum-the Supreme Court itself. Yet need has been felt for strictly co-relating them with “sovereignty” and “integrity” of Pakistan as use din Article that “Islamic Ideology”, “morality” and “maintenance of public order”, in so far as they affect the “sovereignty” or “integrity” of Pakistan, would form part of section 3(1) and in no other sense. Their use is only thus upheld in the said section. Same shall be the position of their use in section 6(1). Unless a political party has been formed or is operating in a manner contrary to “Islamic Ideology” or “morality” or “maintenance of public order”, so as to be prejudicial to the “sovereignty” or “integrity” of Pakistan, it would not be actionable in that context under section 6(1). The expression “Ideology of Pakistan” also in the context, if need be, shall be construed accordingly and mutatis mutandis, in the foregoing sense only.
[p. 532] LLL.
“Security of State” is mentioned as a constraint in the Indian Constitution, but not in our Constitution. It is, however, defined in Article 260 of the 1973 Constitution to mean as including “the safety, welfare, stability and integrity of Pakistan and of each part of Pakistan, but shall not include public safety as such.” It is an expression of wide connotation and includes integrity of Pakistan although this expression has not been used in Article 17(2) itself and cannot also be read into it. The framers of the Constitution being alive to the meaning of the word “security of Pakistan” did not think it proper to insert it as a constraint in Article 17(2). Therefore, while considering it as a constraint in section 3 of the Act it could not have been inserted on the principle that the Legislature cannot disobey the constitutional prohibitions by employing an indirect method as its legislative power is subject to the Fundamental Right. What the Legislature cannot do directly it cannot do indirectly.
Accordingly, this constraint is beyond the scope of Article 17(2). To this extent, the constraint is violative of Article 17(2) of the 1973 Constitution and is void. [p. 532] MMM.
Clause (2) of section 3, however, is a reasonable restriction “in the interest of sovereignty or integrity of Pakistan” and is accordingly protected. [p. 533] NNN.
Next is section 3-A which provides for rendition of accounts but does not provide any consequence if the accounts are not rendered. As earlier held the provisions of this section do not offend against sub-Article (3) of Article 17 for the reasons given earlier at page 151 of this judgment. The rendition of accounts by a political party is not an unusual feature. It is also an obligation in other countries.
[p. 534] OOO & PPP.
Accordingly, section 3-A of the Act cannot be regarded as an unreasonable restriction and it stands protected as sub-Article (3) of Article 17 itself authorize such rendition in accordance with law.
[p. 534] QQQ.
This brings me to the consideration of section 3-B of the Act, which requires compulsory Registration of Political Parties. If the political party fails to apply for its registration, it ceases to be eligible to participate in an election to a seat in a House of Parliament such election. Again if the political party applies for registration then its registration is subject to the satisfaction of the Election Commission upon consideration of the matters mentioned in clauses (a), (b) and (c) of subsection (3) of section 3-B of the Act. Further where are party is registered and if it then violates clauses (a) to (e) of subsection (4) of this section, then without prejudice to any section 6 of the Act, the Election Commission has power to cancel its registration after giving to it an opportunity to show cause against the action proposed to taken in which case it will be open to dissolution and at the same time will be disabled from participating in an election.
Section 3-B is into two parts. The first part deals with the obligation to register (subsections (1), (2) and (3) of this section), and the second part deals with the cancellation of the registration. Within the ambit of the first part, non-application for registration and application for registration which is refused are explicit. In both the cases the consequences that follow are the political party is debarred from participating in an election. However, as for the second part there is the further consequence provided in subsection (4) that it would be liable to dissolution under section 6 of the Act. I may here point out that clause (c) of subsection (4) of section 3-B goes further in the matter of constraints apart from the “Ideology of Pakistan”, “security of Pakistan”, “morality” or “maintenance of public order” as mentioned in section 3. The further constraints are: the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed forces of Pakistan , I would at the outset say that these additional constraints apart from sovereignty or integrity of Pakistan as interpreted in relation to sections 3(1) and 6(1) are inconsistent with Article 1(2) of the 1973 Constitution as they are not mentioned in the Fundamental Right itself, and, therefore, outside the scope of that sub-Article. Clause (d) of subsection (3) further requires the submission of accounts as a condition prerequisite for registration.
I have earlier dealt with the importance of the political party and its role for providing leadership for public offices through elections. If the political party is disabled to participate in an election it loses its political texture and to all intents and purposes it will suffer extermination or in other words its functioning as a political party will come to an end. If this be so then the result will not be different from dissolution as provided in section 6 of the Act.
As for the “satisfaction” of the Election Commission in subsection (3) as being a prerequisite for registering a political party, it is silent as to the compliance with the rules of natural justice, and is per se discriminatory constituting a denial of equality based, as it is, on its own opinion as to the belief of the party. It cannot but be an unreasonable restriction as it also fails to provide a remedy against the exercise of discretion in putting to an end the existence of a political party in the context of the right guaranteed by the Constitution. As regards the consequence provided in subsection (4), i.e. “cancellation of registration”, again it is left to the discretion of the Election Commission which is not subject to any safeguard as to further redress and on the same principle the exercise of this discretion is also an unreasonable restriction.
Coming now to the effect of non-registration or cancellation although the consequence is the same as dissolution nonetheless there is no safeguard available against it as in the case of dissolution. This is clearly violative of the remedial provisions of Article 17(2) and the result accordingly is that it is an unreasonable restriction in the exercise of the right of a political party to carry on its political activities.
[P. 534] RRR.
Advocate for the Petitioner:
Yahya Bakhtiar, Senior Advocate Supreme Court, Aitzaz Ahsan, Advocate Supreme Court, S. Iftikhar Ahmed Gilani, Advocate Supreme Court M. A. Siddiqi, Advocate-on-Record.
Advocate for the Respondent No.1.
Ali Ahmad Fazeel, Attorney-General for Pakistan, Sh. Ghias Muhammad, Senior Advocate Supreme Court, Muhammad Ali Sayeed, Senior Advocate Supreme Court, Tanvir Ahmed Khan, Addl. Advocate-on-Record General, Punjab, Aftab Farrukh, Senior Advocate Supreme Court, Rashid Akhund, Advocate Supreme Court and Fazale Hussain, Advocate-on-Record.
Advocate for the Respondent No.2.
Malik M. Qayyum, Dy. A.-G., Sajjad Ahmed Sipra, Dy. A.-G. and Gh. Fazale Hussain, Advocate-on-Record.
Khalil Ramedy, A.-G. Punjab, Rao M. Yousaf Khan, Advocate-on-Record, Wajihuddin Ahmad, A.-G. Sind, Bashirullah Khan, Addl. A.-G. N.-W.F.P. and Yakub K. Eusafzai, A.-G. Baluchistan on Court Notice.
Dates of hearing: 1st, 2nd, 3rd, 6th, 7th, 8th, 13th, 14th, 15th, 16th and 17th February, 1988.