P L D 1969 Lahore 188 (PLP)

NASIM HASAN SHAH, J.‑‑This is a petition under Article 98 of the Constitution by 12 petitioners, namely, (1) Labour Federation of Pakistan, (2) Pakistan Western Railway Accounts Welfare Association Lahore, (3) Anjuman Malazmeen Amla Mashkian Lyallpur, (4) Union Amla Safai, Municipal Com mittee, Gujranwala, (5) Amla Safai Trade Union Municipal Committee, Lyallpur, (6) All Pakistan Telephone Operators Association, Lahore, (7) Ittehad Trade Workers' Union, Moghalpura, (8) Mechanical Workers' Union, (9) Union Kar kunan‑e‑Brook Bond, (10) Pakistan Western Railway, (11) Punjab University Press Workers' Union, and (12) Fertilizer Factory Employees' Union, Daudkhel. It has firstly been prayed that eleven Central Laws, namely:‑ (i) Industrial Disputes Ordinance, 1959, (ii) Trade Unions Act, 1926, (iii) Industrial and Commercial Employment (Standing Orders) Ordinance, 1960, (iv) Payment of Wages Act, 1936, (v) Workmen Compensation Act, 1923, (vi) Limitation Act and provisions laying down limitation, (vii) Court Fees Act and all provisions requiring affixation of Court‑fee and payment of expenses for process of the Court. (viii) Maintenance of Public Order Ordinance, 1960, (ix) Defence of Pakistan Rules, 1965, (x) Essential Services Act, 1952, (xi) Criminal Procedure Code (sections 109, 144 and 197) and six Provincial Laws, viz.: (a) Industrial Dispute Amendment. Ordinance, 1965, (b) Industrial Disputes Ordinance 1968, (c) Trade Union Ordinance, 1968, (d) Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (e) Factory Amendment Ordinance, 1966, (f) West Pakistan Criminal Law Amendment Act, 1963 and all such provisions contained therein so far as the same are inconsistent with tae supreme permanent law of the sovereign as laid down in Qaran and Sunnah and the Constitution of Republic of Pakistan be declared as void and to have been enacted without lawful authority and, as such, or of no legal effect. It is also prayed that the laws, rules, notifications and orders in force which militate against independence of Judiciary and Courts and the provisions placing the working classes under the Control of Executive Authorities and not under the High Courts, be also declared void and it be declared that the appointment of the Authorities, other than judicial Courts to decide matters of dispute is unlawful and that no person has lawful authority to decide any dispute of the workmen except the Judicial Courts. It is further prayed that the restrictions "imposed on various seven categories of industrial employees and Government Servants for their rights of forming a Trade Union, raising and Industrial Dispute and entitlement of the terms of employment laid down in the laws" should be done away with. And finally, "the laws to the extent of granting authority to the executive to detain punish and convict a person without giving him chance of defence and opportunity of judicial review of allegations and disqualifying him for becoming officer of any Trade Union is unjust, void and against the Fundamental Supreme Law of the Sovereign and the Constitution of Islamic Republic of Pakistan."

2. In support of this petition Mr. Abdul Majid Qureshi has presented an oral argument which is somewhat to the following effect. In Pakistan the legal system is comprised of the following : (1) The fundamental permanent law of the sovereign as laid down in Quran and Sunnah. (2) The law of Constitution of Islamic Republic of Pakistan so far it is consistent with the fundamental law, including the fundamental rights contained in Chapter II Part II of the Constitution. (3) Laws enacted by the Legislature which are consistent with the Supreme Law. It is further submitted that the preamble of the Constitution is the will of the people and was enacted by the first Constituent Assembly and is now annexed to the present Constitution. According to the petitioner, the pre amble aforesaid recognises the position that Sovereignty belongs to Almighty Allah alone and the State is bound to exercise authority within the limits prescribed by him as trustees of the Sovereign Allah alone and that the State cannot make any law which takes away or abridges the rights conferred by the permanent law of the sovereign as laid down in Quran and Sunnah. According to the petitioner the laws enumerated above violate the law of God and the Constitution and are liable to be declared as void to the extent of their inconsistency.

3. The duty to pronounce upon the constitutionality of actions taken by the executive branch and the legislative branch in the State no doubt devolves upon superior Courts. But this function is to be performed in accordance with the provisions of the Constitution. Under the Constitution the Central Legislature has exclusive power to make laws for the whole or any part of Pakistan with respect to the matters enumerated in the Third Schedule (vide Article 131 thereof) while the Provincial Legislature is empowered to make laws for the Province or any part thereof with respect any matter other than the matters enumerated in the Third Schedule (vide Article 132). The next provision contained in the Con stitution viz., Article 133 is of particular relevance for the question under examination. It provides: (1) The responsibility of deciding whether a Legislature leas power under this Constitution to make a law is that of the Legislature itself. (2) The validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law. (3) Nothing in clause (1) or clause (2) stash be construed to have the effect of taking away, limiting or restricting tile power of a High Court exercisable by it under paragraph (c) of clause (2) of Article 98." Under paragraph (c) of clause (2) of Article 98 the High Court can snake appropriate orders for the enforcement or any of the fundamental rights conferred by Chapter I of Part III of the Constitution. It is thus manifest that under the' provisions of this Article the High Court has been given the power to make appropriate orders only in respect of the& enforcement of any of the fundamental rights conferred by Chapter I of Part II of this Constitution and Article 6, which figures in that Chapter lays down that any law in so far as it is inconsistent with the rights conferred therein, shall to the extent of inconsistency be void. It follows, therefore that by virtue of the provisions of Article 133 it is the validity only of those lawn which are inconsistent with the fundamental rights that can be challenged. However, as explained by the Supreme Court in Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (P L D 1963 S C 486), provisions of Article 133 do not deprive the Superior Courts of the power to see whether the impugned Act violates the Constitution or mot and where any law is found to be inconsistent with the Constitutional Provisions the Superior Court can declare the enactment in question as invalid to the extent of its repugnancy.

4. In this petition the petitioners are not basing their case merely on the ground that the laws impugned by them are inconsistent with any of the fundamental rights enshrined in the Constitution but the main point urged is that laws under challenge whether passed by the Central or Provincial Legislature or which continue to exist, as such, should be declared as void on the ground that they are " inconsistent with the Supreme permanent law of the Sovereign as laid down in Quran and Sunnah." No provision of the Constitution is cited in support of this contention but support is derived only from the words of the preamble. It is to be noted that the preamble of a Constitution only sets out the general purposes of the Constitution, the objects and policies of the State and the basic rights of the citizens. The place of the preamble in a Constitution has been aptly described by the Supreme Court of U. S. A. in Jcacobson v. Massachussets ((1950) 197 U S 1 l) Wherein it was observed: "Although the preamble indicates the general purposes for which the people ordained and established the Constitution it has never been regarded as the source of any substative power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution,, and such as may be implied from those powers." The position here also is quite identical.

5. In order to succeed the petitioners must thus show that the laws impugned by them are inconsistent with some specific article of the Constitution. No such inconsistency has been pointed out. On the other hand in Chapter II of the Constitution, dealing with principles of policy, we find that the First principle is: "No law shall be repugnant to the teachings and require ments of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah." These principles, however are not enforceable by Courts of Law. This is evident from the provisions of Article 8, which lays down: "(1) The responsibility of deciding whether any action of an organ or authority of the State, or of a person perform ing functions on behalf of an organ or authority of the State, is in accordance with the principles of policy is that of the organ or authority of the State, or of the person, concerned. (2) The validity of an action or of a law shall not be called in question on the ground that it is not in accord ance with the principles of Policy, and no action shall lie against the State, any organ or authority of the State or any person on such a ground. (3) The National Assembly, a Provincial Assembly, the President or a Governor, may refer to the Advisory Council of Islamic Ideology for advice any question as to whether a proposed law is or is not repugnant to the teachings and require ments of Islam as set out in the Holy Quran and Sunuah." V` Consequently, in the face of this express provision no Sigh Court can question the validity of a lacy on the ground that it is repugnant to the provisions of "the fundamental permanent law of the sovereign as laid down in Quran and Sunnah." Under our Constitution if any such question arises it will be for the National Assembly or the Provincial Assembly or the President or the Governor to refer it to the Advisory Council of Islamic Ideology for its advice whether the proposed taw is or is nest repugnant to the teachings and require ments of Islam as set out in the Holy Quran and Sunnah.

6. No other matter has been argued before us. The conclusion is that this Court is not competent to go into the validity of the impugned laws on the grounds urged in the petition. This Constitutional Petition is dismissed in limine. K. B. A. Petition dismissed.