Background of the Case

Dosso convicted by Loya Jirga and writ petition to the Lahore High Court

Dosso was a resident of the district Loralai in Baluchistan, which was then administered by the Provincially Administered Tribal Areas, who committed a murder and was apprehended by tribal authorities and handed over to the Loya Jirga, which found him guilty under the section 11 Frontier Crimes Regulations, 1901. The relatives of Dosso filed a writ petition in Lahore High Court, then the West Pakistan High Court, against the reference to and decision of Loya Jirga. They argued that the relevant provisions of the FCR were void because they were contradictory with Equity before Law, Equal Protection of the Law, and the right to counsel enshrined in Articles 5 and 7 of the 1956 Constitution.

The High Court ruled in Dosso’s favour and found FCR to be in violation of the 1956 Constitution. Articles 5 and 7 guaranteed that everyone is treated equally before the law. The proceedings of the Loya Jirga under the FCR, 1901 were declared null and void by the Lahore High Court.  

Appeal to the Supreme Court of Pakistan

The Federal Government filed an appeal against this decision in the Supreme Court of Pakistan. The Supreme Court fixed the date for the hearing on October 13, 1958. Prior to it, on October 7, 1958, a major turning point in Pakistan’s political history transpired when the country’s first martial law was imposed.

Martial Law Proclaimed; Constitution Abrogated

 The case made headlines because it raised questions about the legitimacy of Iskandar Mirza’s declaration of martial law on October 7, 1958. President Iskandar Mirza of Pakistan proclaimed martial law in the country on October 7, 1958 at 10:30 pm, and appointed Ayub Khan as the Chief Martial Law Administrators (CMLA). With the abrogation of the 1956 Constitution, the federal and provincial legislatures were dissolved.

Three days later the Laws (Continuance in Force) Order, 1958 was issued on October 10, 1958. Article 2 of the Order provided that, notwithstanding the abrogation of constitution, Pakistan shall be governed as nearly as possible in accordance with 1956 Constitution; article 2(4) allowed to the Supreme Court and High Courts to exercise their writ jurisdiction. However, article 2(5) provided that no writ shall be issued against the Martial Law Administrator or any person exercising powers under him. Similarly, Article 3 stated that no court or person shall call or permit to be called in question any proclamation or order made in pursuance of the Proclamation or Martial Law Order or Martial Law Regulations. Article 4 of the Order provided that all the laws except the 1956 Constitution shall continue in force with the necessary adaptations as the President may deem fit to make.

Article 2 of the Law (Continuance in Force) Order, 1958

The technical and important question involved in the case, after proclamation of Martial Law was that if the Supreme Court upholds the Lahore High Court’s judgment, it means the constitution is still in force, as the case was resolved under Articles 5 and 7 of Pakistan’s 1956 Constitution. So, what would be the status of martial law regulations and the Laws (Continuance in Force) Order 1958 if the constitution was still in force?

Article 4 of the Laws (Continuance in Force) Order, 1958

The Supreme Court set aside the Lahore High Court’s verdict, with Justice Cornelius writing the single dissenting note. The Supreme Court bench headed by Justice Munir based its decision on Hans Kelsen’s General Theory of Law and State.

The judgment of the Supreme Court of Pakistan is summarized below: 

By the Proclamation of October 7, 1958, the President of Pakistan annulled the Constitution of 1956, dismissed the Central Cabinet and the Provincial Cabinets and dissolved the National Assembly and both the Provincial Assemblies. Simultaneously, Martial Law was declared throughout the country, and, Commander‑in‑Chief of the Pakistan Army, was appointed as the Chief ‘Martial Law Administrator: Three days later was promulgated by’ the President the Laws Continuance in Force’ Order, 1958, the general effect of which was the validation of laws, other than the late Constitution, that were in force before the Proclamation, and restoration of the jurisdiction of all Courts including the Supreme Court and the High Courts. The Order contained the further direction that the country, thereafter to be known as Pakistan and not the Islamic Republic of Pakistan, should be governed as nearly as may be in accordance with the late Constitution.

Held, (per Muhammad Munir, C.J.,) that since Article 5 of the late Constitution itself had now disappeared from the new legal order the Frontier Crime Regulation (III of 1901) by reason of Article IV of the Laws Continuance in Force Order, 1958, was still in force and all proceedings in cases in which the validity of that Regulation had been called in question having abated, the convictions recorded and the references made to the Council of Elders were good. [p.542]

A victorious revolution or a successful Coup d’ E’tat is an internationally recognised legal method of changing a Constitution.

After a change of that character has taken place, the national legal order must for its validity depend upon the new law creating organ. Even Courts lose their existing jurisdictions, and can function only to the extent and in the manner determined by the new Constitution.[p.539]

If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State and the revolutionary government and the new Constitution are, according to International Law, the legitimate government and the valid Constitution of the State. [p.539]

[Hans Kelsen: “General Theory of Law & State” translated by Anders Wedberg; 20th Century Legal Philosophy Series pp.117-118]

Where revolution is successful it satisfies the test of efficacy and becomes a basic law creating fact. On that assumption the Laws (Continuance in Force) Order, however transitory or imperfect, was a new legal order and it was in accordance with that Order that the validity of the laws and the correctness of judicial decisions had to be determined. [p.540]

The Order applied to the situation that came into existence under the President’s Proclamation of October 7. The Laws that were in force after that date were enumerated in Article IV, but form the list of such laws the Constitution of 23rd March 1956 had been expressly excluded. This meant that when under clause (4) of Article II of the Order the Supreme Court or the High Court was moved for a writ, the ground for the writ, could only be the infraction of any of the laws mentioned in Article IV, or any right recognized by that order and not the violation of a right created by the late Constitution. The so called fundamental rights which were described in Part II of the late Constitution were therefore no longer a part of the national legal order and neither the Supreme Court nor the High Court had under the new Order the authority to issue any writ on the ground of the violation of any of the fundamental rights……. Under the new legal Order any law could at any time be changed by the President and therefore there was no such thing as a fundamental right, there being no restriction on the President’s law-making power. Under Article 4 of the late Constitution there was a restriction on the power of the legislature to make laws involving breaches of fundamental rights and invalidity attached to all existing laws, customs and usages having the force of law if they were inconsistent with any of the fundamental rights. This test to determine the validity of the laws and the fetters on the power of the legislature to make laws had both disappeared under the new Order. Unless therefore the President expressly enacted the provisions relating to fundamental rights, they were not a part of the law of the land and no writs could issue on their basis. [p. 541]E.

It was true that Article II provided that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision did not have the effect of restoring fundamental rights, because the reference to Government in this Article was to the structure and outline of Government and not to the laws of the late Constitution which had been expressly abrogated by Article IV. Article II and Article IV could therefore stand together and there was no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article IV which were more specific and later must override those of Article II.

Position in regard to future applications for writs, therefore is that they lie only on the ground that any one or more of the laws mentioned in Article IV or any other right preserved by the Laws (Continuance in Force) Order has been contravened.

As regards pending applications for writs or writs already issued but which are either sub judice before the Supreme Court or require enforcement, the relevant provision is clause (7) of Article II. This provision means that, excepting the writs issued by the Supreme Court after the Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that any one or more of the laws mentioned in Article IV or any other right kept alive by the new Order had been contravened. And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of Article II, or any other provision of the new Order, that is to say, the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the proceedings, which require the enforcement of that writ. The abatement must therefore be held to govern all those writs, which were the subject‑matter of appeal before the Supreme Court either on certificate or by special leave.

No judgment, order, or writ of a High Court can considered to be final when either that Court has certified the case to be a fit one for appeal and proceedings for appeal have been taken or when the Supreme Court itself has granted special leave to appeal from that judgment, order or writ. [p. 542]H.

ORDER OF THE COURT

In accordance with the judgments of the majority, the proceedings for writs in each of these cases are held to have abated. The result is that the direction made by the High Court in the case of Sabz Ali and another (Criminal Appeal No. 24 of 1957) and the writs issued by the High Court in the other three cases are hereby set aside. There will be no order as to costs.

A. H.              Order accordingly.

Dissenting opinion of Cornelius, J.I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Courts commenced by the convicted persons in the two cases here under consideration. I do not therefore consider that it is open to me to reverse the judgment of the High Court in these two cases and to re‑call the writs issued by them unless I am satisfied that the view of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable.

The first question, which arises is whether these two appeals can continue, in face of the provisions contained on the, Order of the 10th October 1958. In other words, is it within the expression and the intention of that Order that proceedings of the nature of these two appeals should be continued to a proper conclusion, or is it by expression and intention, the effect of that Order upon these appeals, that they should abate? It is on this point that I find myself with regret, at variance with the view which has found favour with my Lord the Chief Justice and my learned brethren. I have read with great care the reasons advanced in the judgments of my Lord the Chief Justice and my learned brethren which favour that conclusion, but I find myself still in doubt upon the question, and since the decision involves a question of the liberty of the subject, I feel that, consistently with the long accepted rules governing the interpretation and appli­cation of statutes, which is a matter strictly within the judicial field, it is my duty to refrain from coming to a conclusion in the sense desired by the learned Attorney‑General arguing for the State. I shall state my reasons as briefly as may be.

To accept the proposition advanced by the Attorney-­General amounts to holding that the provision in question provides for abatement of a proceeding not on the ground of procedural defect or lack of capacity or competency, but by reason of the cancellation of the Fundamental Rights which took effect from the 7th October 1958, so that as from that date, the validity of any law still in force was not to be judged in relation to those rights. Now, it will be clear from the discussion above in the cases of Sabz Ali and Abdul Latif Khan that, with reference to proceedings which on a date after the 7th October 1958 are still pending proceedings under section 11 of the Frontier Crimes Regulation, there can be no manner of doubt that the validity of these proceedings is not to be judged in the light of any of the Fundamental Rights enumerated in the Constitution of 1956, as from the 7th October 1958. But it is equally clear that up to that date, the duty of the Courts was plainly to declare any law, which did not comply with the said Funda­mental Rights, to be invalid. Therefore, any words contained in the Order of the 10th October 1958, which are to have the effect of nullifying that duty as applying up to the 7th October 1958, must be words of the clearest possible import, since they would be words having retrospective operation in respect of the high judicial authority of the superior Courts. That authority has been maintained and continued by the Order of the 10th October 1958, and as has been seen, in relation to the questions before the Court, there are no words in the Order, which may be thought to have retrospective operation. Therefore, I hesitate to accept an interpretation which would involve retrospective deprivation of the jurisdiction and annulment of the duty of the High Courts, existing on a date in the past, when under the then prevailing instruments, that jurisdiction and that duty were plain for all to see.

In subsection (4) of section 2, it is expressly, stated that the Supreme Court and the High Courts shall have power to issue writs of habeas corpus, mandamus, prohibi­tion, quo warranto and certiorari. It is clear that there is provi­sion empowering the issue of writs by the Courts mentioned, and also for the kinds of writs, which these Courts may issue. By the operation of the prohibitive provisions in subsection (7), writs other than the writs provided for in subsection (4) cannot issue. But to the power given by subsection (4) there are excep­tions contained in subsections (5) and (6). The Courts mentioned are expressly debarred from issuing writs of any of the kinds mentioned in subsection (4) against the Chief Administrator of Martial Law, the Deputy Chief Administrator of Martial Law, and any person exercising power or jurisdiction under the autho­rity of either. Specifically then, the Order makes a prohibitive provision, in respect of every kind of writ against these authori­ties, and therefore under subsection (7) any writs directed to any of these authorities shall have no effect. In subsection (6) there is a further provision, saving the authorities specified in sub­section (5) from receiving writs in the capacity of successors to some other authority, against whom it was competent for the Courts mentioned to issue writs. When such a replacement takes place, the proceedings do not immediately terminate, or become terminable. The Court may continue the proceeding, but at the conclusion thereof, if it is of the opinion that ordinarily a writ should have issued, it may instead send its opinion upon a point of law arising in the case, to the successor authority.

These matters, appearing from within section 2 itself, furnish direct instances of writs provided for as well as writs not provided for by that section. Still bearing in mind that abatement is an incident applicable ordinarily to procedure and on grounds of formality or capacity, to which may be added the ground of immunity, I think it is plain that the expression “any writ which is not so provided for shall abate forthwith” is capable of full application to matters specifically expressed within section 2 of the Order of the 10th October 1958. 1 have read the remainder of that Order with great care for the purpose of determining whether it contains any other words having a strong and necessary implication of the abatement of a writ; and in especial a writ, i.e., as a specific process or machinery by which law is enforced. If the concluding words in subsection (7) of section 2 of the Order had been devoid of meaning or application unless they were understood to bring about a termination of writs and proceedings relating thereto, which had the effect of enforcing rights which have ceased to be available after the 7th October 1958, although they were available and had in fact been enforced in relation to a matter concluded long before that date, I might have felt it necessary to accept that the words must have the latter meaning, but I find in section 2 itself, sufficient material to indicate what was meant by the draftsman in using the expression “unless it is provided for by this Order” and the further expression “which is not so provided for”.

One final reason for my being in a state of doubt upon this question may be added in brief. It is that the validity of writs issued prior to the 7th October 1958, under the provisions of the Cons­titution of 1956 does not appear to be generally hit by anything contained in subsection (7) aforesaid, on the interpretation for which the learned Attorney General has contended before us. Only those of such writs which happen to be still subject to legal revision upon the coming into force of the new regime are sought to be avoided on the basis of this interpretation, and this, not on any consideration whether they were rightly or wrongly granted at the time when they were issued in the eye of the law as then in force, but merely because they happen to be pending by virtue of having been appealed against. It is, in my view, more reasonable to infer, especially since the Order of the 10th October 1958, does not appear, by expression, to have retrospective effect, that as to matters which were concluded during the period which finally terminated on the 7th October 1958, the intention of the Order is that the law in force during that period, at the relevant time, should be allowed to prevail. For, it remains further to be said with reference to a number of Fundamental Rights enume­rated in Part II of the Constitution of 1956 that they do not derive their entire validity from the fact of having been formulated in words and enacted in that Constitution. A number of these rights are essential human rights which inherently belong to every citizen of a country governed in a civilised mode, and speaking with great respect, it seems to me that the view pressed before us by the learned Attorney General involves a danger of denial of these elementary rights, at a time when they were expressly assured by writing in the fundamental law of the country, merely because that writing is no longer of any force.

For these reasons, I am unable to hold beyond doubt that the concluding words of subsection (7) of section 2 of the Order of the 10th October 1958, have the effect of bringing to an abrupt end the proceedings in the petitions before the High Court commenced by the convicted persons in the two cases here under consideration. I do not therefore consider that it is open to me to reverse the judgment of the High Court in these two cases and to recall the writs issued by them unless I am satisfied that the view of the High Court on the point of repugnancy to Article 5 of the Constitution of 1956 is not tenable.

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