P L D 1960 Supreme Court (Pak (PLP)

"Whether the enactments rendered void by the Articles relating to Fundamental Rights in the late Constitution are now in force in Pakistan". ??????????? A Full Bench composed of Kayani, C. J., Kaikaus and Inamullah, JJ. answered the question in the negative by their judgment of the 10th December 1958. A petition for leave to appeal was moved before this Court on the 16th April 1959, and leave was granted on the 11th June 1959. On a later date, namely, the 9th July 1959 a Full Bench of this Court announced its judgment in eight appeals brought by the Province of East Pakistan with reference to acquisitions of land under the East Bengal State Acquisition and Tenancy Act, 1950. In that case, the precise question dealt with by the Full Bench of the West Pakistan High Court was considered at length. and the unanimous decision of the Court was that by the abrogation of the Constitution, any effect which had been produced in relation to existing laws by the operation of Article 4 of the Constitution, (which gave overriding force and validity to the Fundamental Rights against all laws) had been brought to an end, and the laws in question were continued in force by the effect of the Laws (Continuance in Force) Order, 1958, unaffected by anything con?tained in the formulation of Fundamental Rights in the late Constitution. Two of the learned Judges, namely, Kayani, C. J. and Mr. Justice Kaikaus have written lengthy judgments in support of their view, citing authority from various jurisdictions. It appears to us to be unnecessary to deal with the arguments set out in these judgments, for we find that, with respect to the views advanced by the learned Judges, all these views were considered by this Court in arriving at its unanimous decision in regard to the East Bengal State Acquisition and Tenancy Act, 1950 that even though certain of its provisions had been declared by this Court to be in conflict with a Fundamental Right defined in the Constitution, by means of an earlier judgment, ;et the abrogation of the Constitution including the Fundamental Rights had this effect that on the date of the later judgment, the Act of 1950 had regained full force according to its terms, and irrespective of the existence or declaration of any conflict between any of its provisions, and any Fundamental Right as formulated in the late Constitution. It is desirable, however, in order to support the order which we propose to make that we should set out here? extracts from the judgment delivered in the precedent case which we are following and which is published as the Province of East Pakistan and another v. Md. Mehdi Ali Khan and seven others (P L D 1959 S C (Pak.) 387). In the judgment of the Chief Justice, the following observations were made :- ??????????? "The burden of the argument against the abatement of the applications out of which these appeals arise is that a law which by reason of its conflict with the supreme law of the Constitution was void cannot be said to have been in force immediately before the Proclamation, and that, therefore, Article 4 (1) of the Order does not have the effect of continuing it in force . . . . . . . . . . . . . . . .???? As the whole argument is based on the law being `void', the essential question to be determined is whether the law is void in the abstract or only if, and to the extent to which, it comes into collision with a paramount law. To put it in a different way, are the laws void in the sense of their ceasing to exist once they come into conflict with paramount law or do the laws exist and are in force but have to be disregarded or ignored to the extent they come into collision with paramount law in the decision of a case ? That a law may be in force though it is not operative is con?templated by Article 4 (2) of the Order itself which provides that a law is said to be in force if it has effect as law whether or not the law has been brought into operation. To sum up, the law described to be void by Article 4 by reason of its conflict with a fundamental right cannot be said not to have been in force merely by reason of the whole or any portion of it having been in conflict with a fundamental right. The law was in force not only because there were persons and territories to which the fundamental rights did not extend and in respect of such territories and persons the law had full operation but because it was void only in the sense that in the decision of a particular case which brought it into conflict with a fundamental right it had to be ignored or dis?regarded. The moment the fundamental right was taken away by an amendment of the Constitution the law again became operative without its being re-enacted. That this was the sense in which the word `void' was used by the framers of the Constitution becomes perfectly clear from Article 192 of the Constitution which envisages a position where by an order of the President the right to move the Court for the enforcement of a fundamental right is temporarily suspended. On such suspension being ordered the law becomes immediately operative without its being re-enacted. If the law was void ab initio, that is to say, if it did not exist on the statute book, it would require re-enactment on the making of an order suspending the operation of fundamental rights . . . . It cannot, therefore, be said that the laws which were in conflict with the fundamental rights were not 'in force' immediately before the Proclamation of 7th October. They were void so long as they were in conflict with the fundamental rights, but the Constitution having now been abrogated the inconsistency or the repugnancy has disappeared as it would have disappeared by an amendment of the Constitution, and they regain their full operation, un?affected by any constitutional limitation or restriction except lack of power. Their validity or voidance has to be judged when a case calling for their operation arises and if the Fundamental Rights do not exist when a law has to be applied to a case, it must be applied as it was enacted and amended from time to time, without subjecting it to the disability of in?operativeness by a constitutional command which has ceased to govern". The following extract from the judgment of Cornelius, J. is to the same effect ;- "I am clear in my mind that by the use of the expression 'to the extent of such inconsistency' the makers of the Constitution of 1956 laid down by Article 4 a rule of repeal by repugnancy pro tanto, and not a rule of alteration of the law. I conceive of the matter in the following way. The expression 'law' as used in the aforesaid Article 4 seems to me correctly definable as the formal expression in words of the will of a competent Legislature duly enacted as required by the law applicable. No power in the State except the said Legislature and any superior Legislature expressly empowered, can alter the form of words thus enacted into law. A Legislature may declare its will in this manner, and may at the same time declare that, the law thus made should not come into operation until the happening of a certain contingency. The law in question would then not be in operation until the specified event occurs, but it would not be for that reason any the less law in force. I would construe the word 'force' in this context as denoting that degree of power which is derived by the formal expression of the will of a competent Legislature duly enacted into law, irrespective of the further and consequential aspect of its actual operation. On this subject, it will be sufficient for me to refer to such provisions as those contained in Article 224 of the late Constitution, and in subsection (2) of Article 4 of the Laws (Continuance in Force) Order, 1958. Each of these Articles in a high constitutional instrument declares that it uses the expression ' law in force' to mean 'any law having effect as law whether or not the law has been brought into operation'. It is true .that the suggestion conveyed by the words 'brought into operation' is that of a separate and subsequent expression of the will of the Legislature or of some statutory authority empowered by the Legislature, having the effect of putting the law into operation. But in my opinion, the stress is not so much upon the aspect of bringing into operation as upon the operation itself, and therefore it may be safely held that where a law having both force and operation is robbed of its operation by virtue of a judicial finding that its provisions are inconsistent with those in a major law, such law is as much law in force, as another law duly enacted-which awaits a further act of a Legislature or competent authority for bring?ing it into operation". Rahman, J. agreeing with this view said :-??????? "The language of Art. 4 of the late Constitution covers all the Fundamental Rights mentioned in Part 11 thereof and if in the case of one Fundamental Right, as has been demon?strated above, the proposition contended for is unsound, the whole gamut of Fundamental Rights must share a common disability to effect a repeal, or abrogation of any law that may be in conflict with them under the late Constitution. The term `void' occurring in Art. 4 must therefore be construed to mean as 'not in operation' or 'not enforceable' or 'in abeyance', so long as the supreme law holds the field. It is not the equivalent of 'ab initio void' as is the case with an enactment ultra vires the legislative authority. The words 'to the extent of such inconsistency' is also a pointer in the same direction. With the abrogation of the Constitution, on the promulgation of the President's Proclamation, the Fundamental Rights disappeared from the field entailing the consequence that laws existing on the Statute Book were given a fresh lease of life by the Laws (Continuance in Force) Order: 1958, in their original condition and those of their provisions which were inconsistent with the Fundamental Rights, have been revived in their full vigour". In view of the clear enunciation of law contained in a considered judgment of the Full Court upon precisely the same question, we have no hasitation in allowing this appeal. We accordingly set aside the judgment of the High Court, and direct that the answer to the question referred to the Full Bench should be entered as under :- With effect from the 7th October, 1958 when the Constitu?tion including the Fundamental Rights was abrogated, all enactments of date prior to the 7th October 1958, are continued in full force according to their terms, and irrespective of any conflict between their provisions, and the Fundamental Rights) formulated in the late Constitution. We note here the undertaking by Mr. Abdul Haque that the restraint order imposed upon Hashim, which gave rise to the present proceedings is not to be enforced, and that in any case steps will be taken to modify it so as to make it humanly possible for Hashim to fulfil its requirements. A.H.???? Appeal allowed.