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Home Critical Analysis/Archives ERROR AT THE APEX
On The Way To Supreme Court
Challenge on Constitutional Grounds
Mujeeb ur Rahman Dard
Federation of Pakistan
Another person by the name of Mujeeb ur Rahman Dard also challenged the Ordinance under Writ jurisdiction on similar grounds. These two Writ Petitions were dismissed by a single Judge of Lahore High Court mainly on the ground that in view of Article 203-G the matter fell within the exclusive jurisdiction of Shariat Court and the High Court could not entertain the petitions to examine the Constitutional vires of the ordinance.
Intra-court appeal was filed against this judgment and the two cases came up before the Division Bench of Lahore High Court. The Division Bench in the intra-court appeal did not accept the view of the single judge about the interpretation of Article 203(G) of the Constitution of Pakistan and held that
“if a question arises whether a law is valid on a ground other than that of repugnancy to the injunction of Islam, article 203 G will not stand in the way of the High Court from examining it.” [2]
On the question of invalidity of the ordinance on the ground of repugnance to the Constitution, the Division Bench held that
“if Constitution of 1973 had been in force in its entirety the argument of the appellant would have been worth examination but this is not so, for three supra Constitutional documents have since July 1977 eclipsed the Constitution. The first in the context is the proclamation of Martial Law which became effective on the 5th of July 1977. It placed the Constitution in abeyance. The second is the Chief Martial Law Administrator’s Order No. 1 of 1971, also known as the Laws (Continuance in Force) Order 1977. Although clause (i) of Article 2 of this Order inter alia did state that Pakistan would be governed as nearly as may be in accordance with the Constitution but then clause (iii) of the same Article placed all Fundamental Rights under suspension. The third document is the Provisional Constitution Order, 1981, promulgated on the 24th of March, 1981, Article 2 of this order has adopted certain provisions of the Constitution of 1973, it is significant to note that the adopted provisions do not include any of the Fundamental Rights, including Article 20 upon which the appellants rely. Thus the said Article like all other Fundamental Rights is not enforceable at present.” [3]
This judgment was challenged in appeal before the Supreme Court of Pakistan and Leave to Appeal was granted in this case to examine the question whether Ordinance XX violated the fundamental right guaranteed under Article 20 of the Constitution.
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