CASE SUMMARIES (Pre-Mid)

Group 1:

Mamukanjan cotton factory V Punjab PrMamukanjan cotton factory V Punjab Province &
others (PLD 1975 SC 50)

·​ ​Petitioners filed an appeal against the decision of the Lahore high court

·​ ​Petitioners are owners of cotton-ginning factories run by diesel engine

·​ ​Under West Punjab cotton Act 1949, factories were charged with a cotton fee.

However, the definition of factory under the act did not include ginning factories run by
diesel.

·​ ​The petitioner were still asked to make the payments to the government

·​ ​On filing of complain, the court ruled it to be ultra-vires (outside of powers granted).

West Pakistan ordinance was then passed to rectify this and add diesel run factories
under the definition of factories that were to be charged originally.

·​ ​In Chaudhry brothers cotton ginning factory V E.A Bahawalnagar, court ruled that the

government can retain the charges collected (when it did not have the power to do so) and
adjust it for future payments rather than returning it.

·​ ​However, the government refused to adjust the charges taken from the petitioner and

send further notices for the missed/due payments. The petitioner then filed another
petition to declare the validating ordinance ultra vires.

·​ ​Court ruled it to be intra vires (within its limits)

·​ ​Petitions were dismissed.

Kesavanand Bharati case:

FACTS:

·​ ​Bharti, chief of a religious sect in Kerala, bought land under its name. By virtue

of Kerala land reform act 1963 and Kerala land reform (amendment) act 1969, the
government had the right to acquire this land for economic purposes.
 ·​ ​The petitioner sought to have certain fundamental rights enforced through

court, during which time another land amendment was passed, Kerala land reform
amendment 1971.

·​ ​In order to understand this case, the Golanknath judgment needs to be studied

since it basically stated that the parliament does not have the power to amend the
constitution, only apply it.

th​ th​ th​

·​ ​Golaknath case led to the parliament passing the 24​ , 25​ and 29​ amendment,

strengthening the power of the parliament to amend the constitution.

·​ ​The constitutionality of these said amendments is also challenged in this case.

Golaknath judgment:

Ø​ ​Golaknath family owned 1000 acres of land but by virtue of 17​th

amendment were only allowed to retain 300 acres of it and the rest to be
treated as surplus to be handed over to the government.

Ø​ ​Petitioner filed writ petition for violation of right to hold property and
practice profession.

Ø​ ​Petitioner argued that: “Amendment” as stated in the constitution only

means change in an idea and not introduction of new ideas all together

Ø​ ​That article 368 only tells the procedure and not grant the parliament
power to amend the constitution

Ø​ ​Respondent argued: Amendments are not in the ambit of judicial scrutiny

and Parliament has the power to amend the constitution.

Ø​ ​Court ruled that Article 368 in fact did only tell the procedure and not
confers amending powers upon the parliament.

·​ ​In bharti case, Petitioner argued that the power of the parliament to amend the

constitution is limited by the constitution itself. And their fundamental rights are protected
n basis of basic structure theory.

·​ ​Respondent argued that Parliament is supreme and thus has unlimited power to

amend the constitution, based on the supremacy of Parliament theory.

·​ ​Parliamentary supremacy is also needed to fulfill the socio-economic needs

guaranteed to the people and placing a limit on parliament’s power would lead to conflict
of governmental obligations and rights guaranteed by the constitution.

Ruling:
 ·​ ​Parliament can pass any amendment as long as they don’t violate or

infringe the basic structure theory.

·​ ​Upheld 24​th​ amendment

st​
·​ ​1​ part of the 25​th​ amendment intra vires

nd​
·​ ​2​ part of 25​th​ amendment ultra vires

·​ ​“Amendment” as used in article 368 doesnot mean fundamental change.

2: Mehtab Jan case: Article 11 & 12of 1956 constitution:

Facts: Municipal committee issued notice to all people practicing prostitution in Serai Beli
Ram area to vacate their land, in accordance with section 152 of Punjab Municipal Act, as
it harms the morals of all residents of the locality.

Issue: whether section 152 of the Punjab Muncipal Act violates Article 11 and Article 12 of
the Constitution of Pakistan 1956 since prostitution is not expressly prohibited by any law
and thus is not unlawful.

Article 11: freedom of movement: Subject to any restriction imposed by law: every citizen
shall have the right to move freely, reside and settle in Pakistan.

Article 12: freedom of profession: “ Every citizen, possessing such qualification, if any, as
may be prescribed by law in relation to his profession or occupation, shall have the right
to enter upon any lawful profession or occupation, and to conduct any lawful trade or
business.”

Provided that the Article shall prevent:

(a)​ T
​ he regulation of any trade or profession by a licensing system

Section 152 of Punjab Municipal Act:

“The committee may, by public notice, prohibit in any specified part of the
municipality:

(a)​ T
​ he keeping of a brothel

(b)​ R
​ esidence of any person who practices prostitution

(c)​ ​After issuing of this notice still resides within the prohibited area shall be punished
with imprisonment

Held: Section 152 does not violate Article 11 and 12 of the constitution because:
(a)​ ​Every fundamental right has to be read in accordance with morality and decency
which is fundamental features of the constitution even if not expressly mentioned.
Therefore, it is wrong to think that the constitution would allow for an indecent profession
like prostitution to be openly practiced.

(b)​ ​Any profession and trade can be restricted to a particular locality (especially if they
have aggravating factors like school, hospitals etc in their vicinity) and there is nothing
unlawful about it.

(c)​ ​Article 12 expressly allows restriction of profession through a system of licensing,

however it is not practical in every case (like the one in hand) to provide license to every
worker and in such cases an act itself can impose such restriction through its provision.
This is done by section 152 of the Punjab Municipal act.

(d)​ ​Article 11 is not violated because the Municipal act is only asking them to change their
locality in accordance with the Punjab Act and the Constitution and not altogether
prohibiting their right to reside elsewhere.

Petition dismissed.

vince & others (PLD 1975 SC 50)

·​ ​Petitioners files an appeal against decision of the Lahore high court

·​ ​Petitioners are owners of cotton-ginning factories run by diesel engine

·​ ​Under West Punjab cotton Act 1949, factories were charged with a cotton fee.

However, the definition of factory under the act did not include ginning factories run by
diesel.

·​ ​The petitioner were still asked to make the payments to the government

·​ ​On filing of complain, the court ruled it to be ultra-vires (outside of powers granted).

West Pakistan ordinance was then passed to rectify this and add diesel run factories
under the definition of factories that were to be charged originally.

·​ ​In Chaudhry brothers cotton ginning factory V E.A Bahawalnagar, court ruled that the

government can retain the charges collected (when it did not have the power to do so) and
adjust it for future payments rather than returning it.

·​ ​However, the government refused to adjust the charges taken from the petitioner and

send further notices for the missed/due payments. The petitioner then filed another
petition to declare the validating ordinance ultra vires.

·​ ​Court ruled it to be intra vires (within its limits)

·​ ​Petitions were dismissed.

·​ ​In bharti case, Petitioner argued that the power of the parliament to amend the

constitution is limited by the constitution itself. And their fundamental rights are protected
n basis of basic structure theory.

·​ ​Respondent argued that Parliament is supreme and thus has unlimited power to

amend the constitution, based on the supremacy of Parliament theory.

·​ ​Parliamentary supremacy is also needed to fulfill the socio-economic needs

guaranteed to the people and placing a limit on parliament’s power would lead to conflict
of governmental obligations and rights guaranteed by the constitution.

Ruling:

·​ ​Parliament can pass any amendment as long as they don’t violate or

infringe the basic structure theory.

·​ ​Upheld 24​th​ amendment

st​
·​ ​1​ part of the 25​th​ amendment intra vires

nd​
·​ ​2​ part of 25​th​ amendment ultra vires

·​ ​“Amendment” as used in article 368 doesnot mean fundamental change.

NASRULLAH KHAN HENJRA CASE:

- Extradition case. Petitioners in this case required by the courts in the USA to stand
on trial charges for importing heroine into the country.

·​ The petitioners have assailed the legality of the Extradition Act, 1972, in light of
​

article 15 of the constitution.

·​ ​TheAct empowers the government to surrender fugitive offenders, even though they
may be Pakistani nationals,who have committed certain offences, called extradition
offences, to foreign states who have an extradition treaty with Pakistan.

·​ ​They argued that the the extradition act is in conflict with their fundamental right and
thus is void by operation of aricle 8(1) of the constitution.

·​ ​Anotherargument put forth was that the objectives resolution, which was later made a
substantive part of the constitution, described the ultimate goal which was of the
people of Pakistan being able to make their full contribution towards international
peace and progress and happiness of humanity.
·​ If a Pakistani citizen while outside its limits commits an offence which is not
​

covered by a Pakistan law having extra-territorial applicability, and then

manages to return to Pakistan. He would enjoy complete immunity from
prosecution; for, it will not be possible to try him in Pakistan and, if Article 15 is
interpreted in the manner suggested by the learned counsel for the petitioners,
it will also not be permissible to send him to the country where he committed
the offence. Such a situation can hardly be conducive to the attainment of the
goal which the people of Pakistan have set for themselves, namely, to earn an
honourable place amongst the nations of the World. Such an inconsistency
cannot be ascribed to the Constitution-makers. It therefore seems that Article
15 was never intended to afford protection against extradition to citizens who
are accused of serious crimes in other countries. Item No.3 of the Federal
Legislative List, Part I, of the Constitution specifically empowers the Parliament
to make laws on the subject of extradition including the surrender of criminals
and accused persons to Governments outside Pakistan.

·​ It is therefore difficult to hold that the Act is void on account of its conflict with
​

Article 15 of the Constitution.

·​ The petitioners also contended that the evidence laid down before the learned
​

magistrate is not sufficient to justify their surrender to a foreign government.

·​ The court ruled that the report submitted by the learned magistrate was without
​

lawful authority and no legal effect. Therefore, the case was remanded to the
magistrate for a fresh decision.

Group 2:

1997 SCMR 141

FACTS
respondent was appointed as Research and Reference Officer (BPS. 18) in Supreme Court
of Pakistan on 26 7 1984. He was removed from service by the Hon'ble Chief Justice of
Pakistan by order dated 1 9 1993 as a result of disciplinary proceedings initiated against
him under Rule 4 of the Supreme Court (Appointment of Officers and Servants and Terms
and Conditions of Service) Rules, 1982

The respondent thereafter preferred a service appeal before Federal Service Tribunal,
Islamabad, under section 4 of the Service Tribunals Act, 1973
ISSUE
• : Whether the view taken by the Federal Service Tribunal that persons serving in
the Supreme Court of Pakistan are 'Civil Servants'
• and thus a dispute relating to the terms and conditions of service of such persons
is amenable to the jurisdiction of Service Tribunal, is in consonance with law.

Arguments
The learned Service Tribunal
in arriving at the conclusion that respondent was a civil servant within the meaning of
Civil Servants Act, 1973 and as such the appeal filed by him against the order of Chief
Justice of Pakistan removing him from service, was maintainable before the Tribunal,
mainly relied on the observations of this Court in the case of Hadi Bux, Mubarik Ali Khan's
case and Abbas v. Hon'ble Chief `Justice

In Hadi Bux's ease, supra, the appellant was appointed as Additional Secretary in the
Provincial Assembly of Sindh The services of the appellant were terminated by the
Speaker of Sindh Assembly/ In appeal against the order of Sindh Service Tribunal, this
Court held that the appellant was a civil servant within the meaning of Sindh Civil Servants
Act, 1973 as he was holding a civil post in connection with affairs of the Province

Analysis
Siddique
In Hadi Bux's case, supra, the ratio laid down by this Court in treating the appellant in that
case as civil servant was, that the terms and conditions of the services of the appellant in
that case were governed by rules framed under Civil Servants Act which stood
incorporated in the rules framed by the Speaker of Sindh Assembly by reference. as such
the dispute relating to the terms and conditions of their services was amenable to the
jurisdiction of the Service Tribunal established under the Sindh Service Tribunals Act,
1973

The ratio in Mubarik Ali Khan's case, supra, however, unequivocally laid down that
persons employed in the Provincial High Courts were not civil servants for the purpose of
Civil Servants Act and the Service Tribunals Act. The status of persons employed in the
Provincial High Courts, Federal Shariat Court and the Supreme Court of Pakistan and
whose terms and conditions were governed under the rules framed by virtue of Article 208
of the Constitution directly arose in the case of Government of Punjab v. Mubarik Ali
Khan. It was also observed by this Court in Mubarik's case, supra, that the Legislature was
not given any role to determine the terms and conditions of the employees including their
remunerations and this exclusionary rule was found in conformity with the concept of
independence of judiciary as enshrined in the Constitution.

in Abbas's case, supra, this Court refused to go into the question, whether the employees
of the Sindh High Court were civil servants or not within the meaning of Sindh Civil
Servants Act

Further analysis
We would like to mention here that from the trend of arguments at the bar it appeared that
the two expressions 'service of Pakistan' and 'Civil Servants' were treated as
synonymous. This in our opinion is not so. Service of Pakistan is defined in Article 260 of
the Constitution as meaning, any service, post or office in connection with the affairs of
Federation or a Province. This expression also includes an All Pakistan Service and
service in the Armed Forces or any other service declared under an Act of the Parliament
or a Provincial Assembly as Service of Pakistan. The terms 'Civil Servant' is defined in the
Civil Servants Act, 1973 as a person, who is a member of an All Pakistan Service or of a
civil service of the Federation or a person holding a civil post in connection with the
affairs of Federation, including a civil post connected with the defence. On a careful
examination of the definitions of 'Service of Pakistan' and the 'Civil Servant' as mentioned,
it would appear that the two expressions are not synonymous. The expression 'service of
Pakistan' used in Article 260 of the Constitution has a much wider connotation than the
term 'Civil Servant' employed in the Civil Servants Act. While a 'Civil Servant' is included
in the expression 'service of Pakistan', the vice versa is not true. 'Civil Servant' as defined
in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in
Article 260 of the Constitution.

The scope of expression ' service of Pakistan' and Civil Servants' defined in Syeda Abida
Hussain v. Tribunal for N.A.69 (PLD 1994 SC 60)
• In that case the petitioner was disqualified from contesting the general elections of
1993 on the ground that she was a person who held the office of profit in the Service of
Pakistan.
• The assertion of the Ambassador she could not be treated as one in the service of
Pakistan merely because her appointment to the post owed its origin to a special contract
and not the civil servants act… cannot be accepted.
• the mere fact that a person is not a civil servant within the meaning of the Civil
Servants Act would not put him beyond the pale of the said Constitutional definition.

From the above discussion, it is quite clear that a person may be in the service of Pakistan
but for that reason he cannot be classed as a 'Civil Servant' as well, as defined in the Civil
Servants Act.

Conclusion
. Since the service of the respondent was not government under any Act of Majlis e
Shoora passed under Article 240 of the Constitution and terms and conditions of his
service were regulated under the Rules directly framed in pursuance of Article 208 of the
Constitution, he could not fall in the category of a civil servant as defined in the Civil
Servants Act, 1973 in view or the rule laid down in the case of Government of Punjab v.
Mubarik Ali Khan supra. Appeal of respondent accepted.

Justice Fazil kareem

But whether it is a written Constitution or not, if there is a trichotomy of sovereign powers
between the executive, the legislative and the judiciary, as it is in our t Constitution
Article 208 81 and 121 power to judiciary
Articles of the Constitution such as Articles 87, 221 and 240 241 power to parliament

The Constitutional scheme, then, is that there are two broad categories of officers and
servants of the State:
• the first category and that includes that generality of persons in the services of the
Federation and the Provinces is dealt with by Article 240; as regards them, the power to
make law has been granted to the Parliament;
• the second category is of those office servants in respect of whom, the Parliament
and the Provincial Assemblies have no legislative power.

While there is no doubt that the Parliament and the Provincial Assemblies are supreme in
the sphere of the powers granted to them by Articles as such Articles 87, 221 and 240 of
the Constitution, there is equally no doubt that the Parliament has no legislative role to
play in respect of the officers and servants specially dealt with by Article 208 of the
Constitution.

Pakistan company limited case

Laws

the Undesirable Companies Act (X of 1958)

10 (RIGHT TO FORM COMPANY)

Article 5 equality before the law

Article 12 guarantees to the citizen the right to carry

on any business, occupation, trade, or profession

JUDJMENT

A large number of companies have been running Imdadi Schemes.

the company constitutes groups of persons who contribute a sum of money monthly, and
every month a prize out of the sum collected is paid to a member of the group whose
name is determined by lot, and this goes on till all the members are paid, and till the
period for which the scheme is to run is exhausted.

That these companies are in fact suffering heavy losses is clear from the‑accounts filed
by the companies themselves.

the Undesirable Companies Act (X of 1958) was imposed on banning such companies
The only point to consider is whether the legislation is by the competent Legislature and
whether it does not violate any fundamental right.

if Imdadi Schemes should be wound up and in future no company with such objects
should be allowed to be registered c which Legislature is competent to Legislate on the
subject ? The obvious answer is : the Parliament

Provincial Legislature cannot legislate with respect to winding up of companies with

objects not confined to a Province.

I hold that the impugned Act is within the competence of the Parliament

Now discuss Article 10 right to form associations

That the right to form an association has been restricted by the impugned Act is apparent,
and the only question is whether the restrictions placed are in the interest of morality or
public order and are reasonable

justified as a restriction in the interest of morality.

The first is the Act prevents the developing, of
gambling propensities it is in the interest of morality

the effect is that the promoters of these schemes

will be prevented from cheating, robbing, and mis
appropriating the public money. An Act which
prevents all this should be regarded as in the
interest of morality.

Courts writ jurisdiction over registrars acts

Registrar has been given authority for determining whether a

company is an undesirable company.
I would say that in its inherent jurisdiction the Court would be
entitled to go into this matter even though the Act makes no
provision for it and even though the Act purports to give all
authority in the matter to the Registrar. And once the Court
decides that the company is not an undesirable company, the
Registrar cannot keep his control over the company and will
have to release its assets and to return its control to its manager.

I cannot say that in doing so the legislature exercised its

jurisdiction unreasonably. Considering that ultimate control is
still with the High Court acting in the exercise of its writ
jurisdiction it cannot be said that the manner in which tile
restriction is placed is unreasonable.

ARTICLE 5 equality bef law

The objection on the ground of Article 5 of the Constitution is

that the impugned Act only penalises the companies with
objects not confined to one Province leaving all other
companies, firms, associations and individuals free to run
Imdadi Schemes and, therefore, the law is discriminatory.

No law can be held invalid under Article 5 on the ground that two persons similarly
situated the same law is not applicable if it be not within the competence of the legislature
enacting that law to legislate in respect of all those persons.

there is no violation of Article 5.

The second part relates to the distinction between individuals

and associations in the Federal Capital.

if the law, prevents unregistered associations from running Imdadi Schemes and does not
prevent the indivi duals from running such schemes, the discrimination cannot be justified
on the ground that as yet no individual is proved to have run such a scheme, it could be
justified on the ground that the object of the legislation is to stop only the associations of
persons for the purpose of carrying on schemes.

ARTICLE 12 (right to carry out trade)

It is contended on behalf of the petitioners that the

impugned Act contravenes this Article, because
(1) it prohibits the running of Imdadi Schemes which
is a business ; and

(2) it prevents companies that are running Imdadi

Schemes from carrying on other business.

I have not the slightest hesitation in rejecting the suggestion that the legislature can
declare the carrying on of any business or profession unlawful. A fundamental right is a
limitation on the power of the legislature and is a guarantee to a person or citizen, that
such rights shall not be taken away by legislation. To say that the legislature can
pronounce a business to be unlawful would mean that there is no fundamental right in
Pakistan with respect to business, trade etc.

If an act involved in a business, trade, profession, or occupation, is such that if performed

otherwise than as a part of a business, trade, profession or occupation, it is unlawful, then
it cannot become lawful just because it is performed as a part of a business, trade or
profession, that is, as a part of activity indulged in for the purpose of profit or income.
That is the only limitation placed on the right to carry on a business

Article 12 now stands. The word "lawful" would have to be put in because if it did not
exist, the citizen could claim, as already observed, that he had the right to commit. theft,
dacoity, blackmail or any other offence, because he had adopted it as a means of income.

The next question to be considered is whether the Imdadi Schemes are within the
connotation of "business"

Imdadi Schemes can be run for the purpose of profit and are business

45. If a business is stopped, will not Article 12 be

violated ? It must be unless it be held that the
business is unlawful.

I would hold that section 294‑A PPC applies to all methods dependant solely on chance
whether there be a physical drawing t or not, and that all cases of "specified purpose"
would be within section 294‑A. Section 294‑A does require, in addition to a lottery, the
running of an office or the publishing of a proposal, but the first part will always apply to a
case where a company is running business for a specified purpose.

Article 12 applies only to citizens. " Citizen ". A company cannot be a citizen at all.

EDWARDS VS CALIFORNIA

https://www.lexisnexis.com/community/casebrief/p/casebrief-edwards-v-california

Group 3:

❖ According to the Ordinance No XII of 1998, Military Courts were established due
to increase of terrorism in Karachi
❖ According to this ordinance Civilians who have committed offences, mentioned in
the ordinance, could be tried in these Military courts
❖ 5 constitutional petitions were filed calling o
Liaqat Hussain v Federation
❖ The case Liaqat Hussain v Federation talks about the topics of separation of
power between executive and judiciary.
❖ ut this ordinance as violating different provisions of Constitution (Art 175
Establishment and Jurisdiction of Courts, Art 9 Guarantee to life, Art 25 Equality of
Citizens etc.)
❖ Some of these petitions also called out for amendments in the ordinance in order
for it to be implemented. (Syed Iqbal Haider)
❖ The defendants in this case referred to Article 245 which is Functions of Armed
Forces, they relied on the term “aid of civil power”
❖ They also talked about how these Military courts are a temporary measure and in
no way establishes a parallel judicial system.
❖ Advocate General Sindh contended that terrorism in Sindh was so organised that
it did not allow the ordinary criminal courts to function. He also stated an instance
where a public prosecutor was murdered. Hence for the “Aid of Civil Power” such
courts were necessary.
HELD
❖ The ordinance XII of 1998 was held to be unconstitutional.
❖ The cases in which sentences have already been awarded but not yet been
executed were set aside and these cases were transferred to the Anti-Terrorist
Courts.
East and west steamship case:

·​ ​This is mainly about freedom of trade and business, article 18.

·​ ​Mainly two parties were involved, one (petioner) was steel ship company, owner of 6 ships
and the other was ship authority.

·​ ​Steel ship company said that ship authority was violating articles 11 and 12 that was
regarding freedom of trade and business.

·​ ​Their argument was that ship authority is misusing its power of licensing.

·​ ​The power that ship authority had was of licensing without which no ship can move from one
port to other carrying cargo or people and can’t even decide fare.

·​ ​Steel ship company said that they can give or take license at any point in time and have
complete control over ships that enter their zone which is unlawful.

·​ ​This was refuted by court as was declared that it was for public welfare and to avoid fare war.

·​ ​It was said that they had to keep record and track of ships, if they don’t follow these
instructions they could even loose ships.

·​ ​So this was declared by court that there was no violation of article 11 and 12 regarding
freedom of trade and business. All the actions were declared as lawful acts.
Muhammad Ayub V Chairman SC:
Plessy v Ferguson
Citation: 163 U.S.537, 16 S. Ct. 1138, 41 L. Ed. 256, 1896 U.S. 3390.

Facts:​ A Louisiana statute required railroad companies to provide separate, but equal
accommodations for its Black and White passengers. An exception was made for nurses
attending to the children of the other race. Plaintiff, who was seven-eighths white, was
prosecuted under the statute after he refused to leave the section of a train reserved for
whites. The alleged purpose of the statute was to preserve public peace and good order
and to promote the comfort of the people.

Issue:​ Was the statute requiring separate, but equal accommodations on railroad
transportation consistent with the Equal Protection Clause of the Fourteenth Amendment
of the Constitution?

Held:​ Yes, The State Supreme Court is affirmed.

Justice Henry Brown (J. Brown) stated that although the Fourteenth Amendment of the
Constitution was designed to enforce the equality between the races, it was not intended
to abolish distinctions based on color, or to enforce a commingling of the races in a way
unsatisfactory to either. Laws requiring the separation of the races do not imply the
inferiority of either. If the law “stamps the colored race with a badge of inferiority,” it is
because the colored race chooses to put that construction upon it. Therefore, the statute
constitutes a valid exercise of the States’ police powers.
The Fourteenth Amendment of the Constitution does, however, require that the exercise
of a State’s police powers be reasonable. Laws enacted in good faith, for the promotion
of the public good and not for the annoyance or oppression of another race are
reasonable. As such, the statute was reasonable.

Dissent:​ Justice John Harlan (J. Harlan) said that everyone knows that the purpose of
the statute was to exclude the colored people from coaches occupied by whites. The
Constitution is color-blind. It neither knows nor tolerates classes among citizens.

Discussion:​ This case marks the beginning of the “separate but equal” doctrine. It is
later overturned by Brown v. Board of Education.

● Asfand Yar Wali Khan Case PLD 2001 Supreme Court 607
○ http://courtingthelaw.com/2019/05/08/laws-judgments-2/judgmen
t-analysis/supreme-courts-judgment-in-2001-regarding-national-
accountability-bureau/
Group 4:

Shahbaz Sharif Case

A criminal case was also filed against Shahbaz Sharif. The petitioner claimed he should be
allowed to come back to the country to contest such claims but there were reports (in
newspapers of various people in the government) that he would be immediately deported, and
the same instructions had been issued to airports. The petitioner claimed that as President of
Pakistan Muslim League (Nawaz Group) he has a Constitutional right to participate in the political
activities and perform his functions as envisaged in Article 17 of the Constitution of Islamic
Republic of Pakistan, 1973.

The court considered the validity of the petition under art. 184(3).
It held that:
Two conditions are precedent for invoking Art. 184(3) of the Constitution, firstly the petition must
clearly demonstrate that the grievance relates to violation of fundamental rights, secondly, the
violation is of nature of public importance which means any invasion of individuals' freedom. In
order to acquire "public importance", thus must relate to a question, which is of interest to or
affects the whole body of people or entire community. The issue in order to assume the character
of public importance must be such that its decision affects the rights and liberties of people at
large. The adjective `public' necessarily implies a thing belonging to people at large, the nation,
the State or a community as a whole.

Therefore, having regard to the connotation of the words "public importance", the facts and
circumstances of each case would have to be scrutinized on its own merits. Mere fact that a
question of arrest or detention of an important person is involved, this by itself is not enough to
invoke clause (3) of Article 184. What is essential is that the question so raised must relate to the
interest of whole body of the people or an entire community. To put it in other words, the case
must be such, which raises a question affecting the legal rights or liabilities of the public or the
community at large, irrespective of the fact that who raised such question. Petitioner has not
raised any question of public importance. It appears that he left the country on his own anti
nothing material has been brought on record to substantiate the assertion S that he was forced to
live in exile. The petitioner has prayed for a relief which, in fact, always remained available to him
and he himself was solely responsible for not availing it earlier.

It is not denied that Article 15 of the Constitution bestows a right on every citizen of Pakistan to
enter or move freely throughout the country and to reside and settle in any part thereof. It is a
settled proposition of law that the right to enter in the country cannot be denied but a citizen can
be restrained from going out of the country. The petitioner is a citizen of Pakistan and has a
constitutional right to enter and remain in the country. It was held that the petitioner may come
back from abroad subject to the law of the country.
Ashe v. Swenson

https://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure
-keyed-to-saltzburg/double-jeopardy/ashe-v-swenson-4/

Group 5:

MUNIR HUSSAIN BHATTI

Main concept: Separation of Powers, Autonomy of the Judiciary, Judicial Appointments

In Munir Hussain Bhatti’s case, the Supreme Court held that the parliamentary committee could
not set aside the commission’s findings as regards the competence and fitness of its nominees.

While the parliamentary committee may dwell upon the antecedents of a nominee, it is obliged to
record its reasons in cases where it rejects a nomination. These reasons shall, in turn, be
susceptible to judicial review — the upshot of this being the commission’s and, more specifically,
the judiciary’s control or (given the commission’s composition) its monopoly over appointments to
the superior judiciary.

The first major opportunity for the Supreme Court to interpret the provisions of the 19th
Amendment and set the contours of the new appointment process arose in 2011 in the case of
Munir Hussain Bhatti. The issue under contention was whether the Parliamentary Committee
could disagree with the Judicial Commission on the extension/confirmation of judges of the High
Court. The PC, based on the remarks of the Chief Justice of the Lahore High Court, refused to
extend the probation period of four judges of the Lahore High Court. The decision of the PC was
challenged before the Supreme Court. Overruling the decision of the PC, the Court held that ‘the
technical evaluation of a person’s calibre as a Judge has to be made by the [Judicial]
Commission, and once evaluated the recommendations of the Commission are to be looked (sic)
as one. The Court further asserted that the PC ‘can reject the nomination on the grounds falling
within its domain for very strong reasons which shall be justiciable. Here again, the observation
that the PC’s reasons for departing from the JC’s recommendations would be justiciable meant
that the superior judiciary retained ultimate control over judicial appointments to the superior
judiciary.

The case rendered the PC almost redundant, or at the very least, quite weak.

JIBENDRA KISHORE CASE PLD 1957 SC

https://joshandmakinternational.com/resources/pakistani-precedents-and-decisions/p-l-d-1957-supre
me-court-pak-9/

Ghulam Jilani Case PLD 1967 SC 373

Ball v. United States,​ 163 U.S. 662
(1896)​https://joshandmakinternational.com/resources/pakistani-precedents-and-decisions/p-l-d-1957-
supreme-court-pak-9/

Ball v. United States, 163 U.S. 662 (1896), is one of the earliest United States Supreme Court
cases interpreting the Double Jeopardy Clause.

In 1889, defendants Millard Fillmore Ball, John C. Ball, and Robert E. Boutwell were indicted for
the murder of William T. Box. The jury acquitted Millard Fillmore Ball and convicted John C. Ball
and Robert E. Boutwell. The convicted defendants appealed to the Supreme Court, which
reversed their convictions in 1891, holding that the indictment was insufficient. All three were
indicted for the murder a second time. All three plead prior jeopardy. The trial court rejected all
three pleas, and all three were convicted the second time.

On the second appeal, the Supreme Court reversed Millard Fillmore Ball's conviction. Departing
from the common law rule of England, and from early decisions of the state supreme courts of
New York and Massachusetts, the Court held that—under the Double Jeopardy Clause—the
insufficiency of the first indictment could not remove the jeopardy bar of acquittal, as long as the
first court had jurisdiction.

The Court rejected John C. Ball and Robert E. Boutwell's double jeopardy arguments, holding
that they could be retried after their prior convictions were reversed on appeal. The court also
rejected their remaining arguments.

PML vs Federation (PLD 2007 SC 642)

• on behalf of petitioners against their alleged forced exile to Saudi Arabia as similar
questions of fact and. law are involved
• every citizen of Pakistan has a right to enter and move freely throughout the
country and to reside and settle in any part thereof without any embargo or restriction
which cannot be imposed as the right conferred upon a citizen under Article 15 of the
Constitution is inalienable.
• It is next contended that the petitioners were deported from Pakistan by force and
in fact it was a forced exile.
• It is contended that no restriction whatsoever can be imposed on the Fundamental
Rights guaranteed to the petitioners as it would be violative of the provisions as
contemplated in Article 15 of the Constitution.
• On behalf of the Federation of Pakistan - Shahibzada Ahmad Raza Qasuri
It is also pointed out that no prohibitory order has been passed imposing any restriction
on the movement of petitioners and their apprehension is based on speculations and
conjectural presumptions on the basis whereof no relief can be granted
• It is also pointed out that it is not a case of forced exile but on the contrary the
petitioner had left the country with his own consent and that too to the choice of his
country where he remained for more than six years and no attempt whatsoever was made
to come to Pakistan
• contended that the petitions are not maintainable under Article 184(3) of the
Constitution and the petitioners should have invoked the Constitutional jurisdiction under
Article' 199 of the Constitution as conferred upon learned High Court.
• the petitioners had gone abroad at their own and as a result of agreement executed
by the petitioners and Saudi Arabia was their own choice where they remained for a
considerable long time and as such their voluntary migration cannot be termed as forced
exile
• the petitioners specially Mian Muhammad Nawaz Sharif had never made -any
attempt to enter into Pakistan and besides that no prohibitory order has ever been passed
restricting the entry of the petitioner in Pakistan.
• The learned Attorney General has stressed that the petitioners had made a deal
with the Government after giving an undertaking that they would not return to Pakistan for
a period of ten years and more so they would not participate in the political activities.
• Article 184(3) of the Constitution of Pakistan pertains to original jurisdiction of the
Supreme Court and its object is to ensure the enforcemenrt of fundamental rights referred
to therein. This provision is an edifice of democratic way of life and manifestation of
responsibility casts on this Court as a protector and guardian of the Constitution: The
jurisdiction conferred by it is fairly wide and the Court can make an order of the nature
.envisaged by Article 199, in a case where a question of public importance, with reference
to enforcement of any fundamental right conferred by Chapter 1 of Part II of the
Constitution is involved. .Article 184(3) is remedial in character and is conditioned by
three prerequisites, namely----
(i) There is a question of public importance.
(ii) Such a question involves enforcement of fundamental right, and
(iii) The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the
Constitution."
• The public importance of a case is determined as observed by this Court in
Manzoor Ellahi's case, supra, by decision on questions affecting the legal rights and
liberties of the people at large, even though the individual who may have brought the
matter before the Court is of no significance
• While discussing Article 15 of the Constitution if was affirmed that it bestows a
right on every citizen of Pakistan to enter or move freely throughout the country and to
reside and settle in any part thereof. It A is a settled principle of law that the right to enter
in the country cannot be deified but a citizen can be restrained from going out of the
country. The petitioners are citizens of Pakistan and have a Constitutional right and a
sacred prerogative to enter and remain in Pakistan.
• It is declared that Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz
Sharif, under Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 have an
inalienable right to enter and remain in country, as citizens oh Pakistan.
• "the expression political justice" is very significant and it has been placed in the
category of fundamental rights. Political parties have become a subject-matter of a
fundamental right in consonance with the said provision in the Objectives Resolution.
• as leaders of a national political party elected twice by the people of Pakistan has
every right to return to organize their party and to participate in the General Elections
subject to all legal exceptions.
• The exercise of jurisdiction by this .Court under Article 184(3) of the Constitution is
not controlled by the provisions of Article 199 of the Constitution. I am, therefore, unable
to agree with the contention of the learned Attorney-General that provisions of Article 199
ibid are to be read as part of Article 184(3) of the Constitution and therefore, exercise of
power by this Court under the latter mentioned Article of Constitution is subject to
limitation mentioned in Article 199 ibid.
• . Similarly, it was observed in Benazir Bhutto's case, supra, that public importance
should be viewed with reference to freedom and liberties guaranteed under Constitution,
their protection and invasion of these rights in a manner which raises a serious question
regarding their enforcement, irrespective of the fact whether such infraction of right,
freedom or liberty is alleged by an individual or a group of individuals.

Masroor Ahsan case PLD 1998 SC 823,

RULE: -Art. 19---Freedom of speech---Object and scope of Art. 19 of the Constitution.

Article 19 of the Constitution confers on all citizens the right of freedom of speech by providing
that every citizen shall have the right to freedom of speech and expression, and there shall be
freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the
glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations
with foreign States, public order, decency or morality, or in relation to contempt of Court
(commission of) or incitement to an offence.

FACTS:
It was vehemently urged by the learned counsel for aforesaid respondents that since the alleged
contemptuous speeches were made on the floor of the Parliament, the same are immune from
being the subject-matter of any contempt proceedings by virtue of Article 66 of the Constitution,
which confers the right of freedom of speech on the Members of the Majlis-e-Shoora (Parliament)
and immunity from being liable to any proceedings in any Court in respect of anything said on the
floor of the House. The second plea which was urged by the learned counsel for above
respondents was that immediately when the alleged contemptuous speeches were made, the
objected portions of the same were expunged under Rule 281 of the National Assembly of
Pakistan, Rules of Procedure and Conduct of Business in the National Assembly, 1992, framed
pursuant to the power contained in clause (2) of Article 67 of the Constitution, hereinafter referred
to as the National Assembly Rules, by the Speaker (which includes the Deputy Speaker who was
presiding over the relevant session) and, therefore, since the objected portions do not exist in
law, they cannot be made basis of contempt proceedings.

I may take up the above first plea relating to the privilege of freedom of speech of the Members of
the Parliament guaranteed under Article 66 of the Constitution. In this regard, it may be pertinent
to observe that I have already reproduced the relevant Articles of the Constitution which are to be
construed, namely, Articles 19, 63(1)(g), 66, 68 and 204. It will not be out of context at this stage
to observe that our country has a Federal System of Government which is based on trichotomy of
power, each organ of the State is required to function/operate within the bounds specified in the
Constitution. Though one can say that Judiciary is the weakest limb as it does not have the
resources or powers which the Legislature or the Executive enjoy, but it has been assigned very
important and delicate role to play, namely, to ensure that none of the organs or the Government
functionaries acts in violation of any provision of the Constitution or any other law and because of
the above nature of work entrusted to the Judiciary, the framers of the Constitution envisaged an
independent Judiciary. However, I may add that the Judiciary is also Constitutionally obliged to
act within the limits of its jurisdiction as delineated by the Constitution inter alia in Article 175
thereof. Clause (2) of the above Article provides that no Court shall have any jurisdiction save as
is or may be conferred on it by the Constitution or by under any law. In this view of the matter, the
relevant Constitutional provisions are to be construed in a manner that neither the Judiciary nor
the Legislature transgresses its own limit and an equilibrium is to be maintained inter se between
the three organs of the State. However, at the same time, it should not be overlooked that our
Constitution has enshrined and emphasised independence of Judiciary and, therefore, the
relevant provisions are to be construed in a manner which would ensure the independence of
Judiciary. We have a written Constitution, which is an organic document designed and intended
to cater to the needs for all times to come. It is like a living tree; it grows and blossoms with the
passage of time in order to keep pace with the growth of the country and its people. Thus the
approach while interpreting a Constitutional provision should be dynamic, progressive and
oriented with the desire to meet the situation, which has arisen effectively. The interpretation
cannot be narrow and pendantic but the Courts' efforts should be to construe the same broadly,
so that it may be able to meet the requirements of an everchanging society. The general words
cannot be construed in isolation but the same are to be construed in the context in which they are
employed. In other words, their colour and contents are derived from the context.

Keeping in view the above principle of interpretation of a Constitutional provision, it may again be
observed that Article 19 of the Constitution (which relates to one of the fundamental rights) inter
alia provides that every citizen shall have the right to freedom of speech and expression subject
to any reasonable restrictions imposed by law which includes law relating to contempt of Court. In
other words, the above Article of the Constitution guarantees freedom of speech but it is subject
to reasonable restrictions imposed by law in respect of the matters mentioned therein including
the contempt of Court. A Member of the Parliament in addition to his right under Article 66 of the
Constitution may as a citizen of Pakistan invoke Article 19 if he makes a speech outside the
Parliament. However, since aforesaid respondents Nos.3, 4, 5 and 7 made speeches on the floor
of the House, we will have to refer to Article 66; clause (1) of which lays down that "Subject to the
Constitution and to the rules of procedure of Majlis-e-Shoora (Parliament), there shall be freedom
of speech in Majlis-e-Shoora (Parliament) and no member shall be liable to any proceedings in
any Court in respect of anything said or any vote given by him in Majlis-e-Shoora (Parliament),
and no person shall be so liable in respect of the publication by or under the authority of
Majlis-e-Shoora (Parliament) of any report, paper, votes or proceedings". The moot question is,
as to whether the words "Subject to the Constitution" which prefixed the operative portion of
Article 66 makes the above right of freedom of speech on the floor subject to other provisions of
the Constitution, namely, Article 68 which enjoins that no
discussion shall take place in Majlis-e-Shoora (Parliament) with respect to the conduct of any
Judge of the Supreme Court or of a High Court in the discharge of his duties. Furthermore, Article
204 of the Constitution, as pointed out hereinabove, has empowered the. Supreme Court and a
High Court to punish "any person" who has committed contempt as defined in sub-clauses (a) to
(d) thereof. In England, it is a well-settled proposition of law after the Bill of Rights that a Member
of the Parliament enjoys absolute right of freedom of speech

Now that the ground is clear, it is to be considered if the contention raised by the petitioner is
tenable. The mere fact that he is a Member of the Legislative Assembly will not spell out for him
an absolute privilege. In order that he might successfully plead privilege and claim immunity from
proceedings in Court, it has to be established that the prosecution relates to something said in
the Assembly or that the publication in question is by or under the authority of the House. The
questions which are said to be defamatory and upon which the charge is founded having been
disallowed were never asked in the House with the result that they cannot be said to form part of
the proceedings of the House as a result of the disallowance by the Speaker. The questions were
left out of the proceedings with the consequence that they did not acquire that impress which
alone could impart to their author immunity from liability to proceedings in Court

In Article 66 they provided the right of freedom of speech and immunity of being sued in respect
of anything said on the floor of the Parliament subject to the Constitution instead of providing non
obstante clause by using the words "notwithstanding anything contained in the Constitution" or by
omitting the words "Subject to this Constitution". They also incorporated Article 68 for prohibiting
any discussion in the Majlis-e-Shoora with respect to the conduct of a Judge of the Supreme
Court or a High Court in the discharge of his duties. They further provided Article 204
empowering the Supreme Court and the High Courts to initiate contempt proceedings. Clause (c)
of sub-rule (2) of Rules 248 of the National Assembly Rules also prohibits any discussion about
the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.
In my humble view, the Members of the Parliament under Article 68 have the right to discuss a
matter relating to Judiciary which does not fall within the ambit of contempt of Court as defined by
Article 204 of the Constitution and does not violate any of the Constitutional provision or the rules
framed thereunder. If above Article 204 of the Constitution would not have been incorporated, no
contempt proceedings could have been initiated on the basis of a speech made by a Member on
the floor of the House under the Contempt of Courts Act as Article 66 of the Constitution would
have been a complete answer to such a proceeding

It may be observed that the judgment of this Court in the case of Ch. Zahur Ilahi, M.N.A. v. Mr.
Zulfikar Ali Bhutto and others (supra) referred to hereinabove in para. 16(x) lends support to the
view which I am inclined to take inasmuch as in the above case it was urged on behalf of the then
Prime Minister in defence of the contempt proceedings under Article 204 of the Constitution that
under Article 248, he enjoys immunity from being answerable to any Court in respect of exercise
of his powers and performance of his functions as the Prime Minister and as the impugned
speech was made by him in the performance of his functions as the Prime Minister, the same
was immune in view of clause (1) of the aforesaid Article. The above contention was repelled by
Hamoodur Rahman, C.J. by observing that "since neither the Constitution nor any law can
possibly authorise him to commit a criminal act or do anything which is contrary to law, the
immunity cannot extend to illegal or unconstitutional acts. Even a Prime Minister is under clause
(2) of Article 5 of the Constitution, bound to obey the Constitution and law as that is the basic
obligation of every citizen. The scope of the powers and functions of a Prime' Minister cannot
possibly extend to-the committing of contempt of Court which is punishable under the
Constitution itself and, therefore, by necessary implication prohibited".

in respect of contemptuous statements/speeches allegedly made by respondents Nos. 1, 2 and 6

outside the Parliament and by respondents Nos. 3, 4 and 5 on the floor of the National Assembly
in the evening of 29-10-1997 criticising the suspension of 14th Constitutional Amendment by an
interim order dated 29-10-1997 passed by a Bench of three learned Members headed by the
then Hon'ble Chief Justice inter alia in Constitutional Petitions Nos. 24 and 25 of 1997 to the
effect that "no adverse action shall be allowed to be taken against any Member of the Parliament
in pursuance of newly added Article 63-A which is impugned, in these petitions".

It appears that on? 31-10-1997 the Prime Minister of Pakistan on the floor of National Assembly
announced the appointment of five Judges in this Court' as *as recommended by .the then
Hon'ble Chief Justice and in respect of which a serious controversy had erupted between the
Federal Government and the then Hon?ble Chief Justice.

Notice of the above contempt proceedings was ordered to be issued to the learned
Attorney-General and the respondents. It appears that respondent No. 11 Pakistan Television
Corporation Islamabad, were impleaded pursuant to a Court order dated 3-11-1997.

In the body of the above criminal Original petition, it has been averred that respondents Nos 1 to
7 expressed their vises on the subject of constitution of Pakistan, the status of Parliament and
Courts of law in the light of decision of the learned supreme court of Pakistan given on the
miscellaneous application, wherein an order to suspend operation of Article 63 of the constitution
pertaining to the right of expression of the ,Members of Parliament, till the final decision in the
Constitutional Petition, referred to above, was made. It has further been averred that the
statements/comments/criticism of respondents Nos. l to 7 have published if the newspapers of
respondents Nos. 8 to 10 in the following words:

It has also been averred that respondents Nos. 2 to 7's statements published in the above
newspapers contained allegations 'against the Supreme Court of Pakistan and specifically
against the Chief Justice of Pakistan and that their said statements lowered the status of the
august Supreme Court of Pakistan in the eyes of public at large, the petitioner, and the
international community It has further been pleaded that the conduct, allegations, statements,
declaration and speeches made by the respondents in respect of the order of the Supreme Court
dated 29-10-1997 were evidently aimed at gaining political popularity at the cost of demolishing
the third and the most important pillar of the State,. the Judiciary, and prejudicing the process of
law. It has also been averred that the past conduct of respondent No. 1 and others is also
relevant since instead of complying with the 20th March judgment (Judges' case) the respondent
No. 1 adopted a stance in disregard of the law and, the Constitution. It has been prayed that the
petition may be allowed against "the respondents arid proceedings for contempt of Court be
initiated against the respondents and they be published for contempt under the law and the
Constitution .

However, it may be observed that the freedom of press is only a specific instance of general right
of freedom of speech; persons engaged in newspaper business cannot claim any other or greater
right than that possessed by the persons not in that business. Furthermore, the freedom of press
is not absolute, unlimited and unfettered. The protective cover of press freedom must not be
thrown open for wrong doings. The press is expected to recognize its duties and responsibilities
towards the society and in discharging their functions/duties they should not compromise on
public order, decency and morality: If they exceed the reasonable limit or limit of fair criticism they
become liable to be prosecuted for contempt. An irresponsible conduct and, attitude on the part
of an editor, reporter, columnist and publisher cannot be said to have been adopted in good faith.
At the same time one cannot overlook the fact that it is an inalienable right of every citizen to
comment fairly on any N matter of public importance in accordance with law. This right is one of
the n pillars of individual liberty, freedom of speech which the Court have always faithfully upheld
in terms of the Constitutional mandate. It may be added that function/duty of a free press is to act
as a watchdog and to disseminate correct and fair accounts of the various public events and of
other matters in which public may be vitally interested. In the discharge of the above function/duty
. there may be some occasional lapses on their part which are to be condoned, provided the
same do not fall within the ambit of reckless or irresponsible conduct or prompted by malice or
any other ulterior motive. In my view the press besides relying upon Article 19 of the Constitution
which provides that every citizen shall have the right of freedom of speech and expression and
there shall be freedom of press subject to any reasonable restrictions imposed by law which
includes contempt law, may press into service Article 18 of the Constitution which guarantees
freedom of trade, business or profession.

U.S. v. Johnson 383 U.S. 169 (1966)

Interpreting Article I, Section 6 of the Constitution, which provides that Senators and Representatives
shall not be questioned in any other place for any speech or debate in either House.

Facts:

·​ ​Respondent, a former Congressman, was convicted on several counts of violating the conflict
of interest statute (18 U.S.C. 281) and on one count of conspiring to defraud the United States (18
U.S.C. 371).
·​ ​The conspiracy charge involved an alleged agreement whereby respondent and another
Congressman would attempt to influence the Justice Department to dismiss pending savings and
loan company mail fraud indictments. As part of the conspiracy respondent allegedly delivered a
speech in Congress favorable to loan companies, after being paid for it.
·​ ​The Government contended and adduced proof to show that the speech was delivered to serve
private interests; that respondent was not acting in good faith; and that he did not prepare or
deliver the speech as a Congressman would ordinarily do.
·​ ​The Court of Appeals set aside the conviction on the conspiracy count as being barred by Art.
I, 6, of the Constitution, providing that "for any Speech or Debate in either House" Senators and
Representatives "shall not be questioned in any other Place," and also that the evidence collected
was unconstitutional and had impacted the entire prosecution.
Held​:
1.​ ​The Speech or Debate Clause precludes judicial inquiry into the motivation for a
Congressman's speech and prevents such a speech from being made the basis of a criminal
 charge against a Congressman for conspiracy to defraud the Government by impeding the due
discharge of its functions. Pp. 173-185.

(a)​ ​The Speech or Debate Clause, which emerged from the long struggle for parliamentary
supremacy, embodies a privilege designed to protect members of the legislature against
prosecution by a possibly unfriendly executive and conviction by a possibly hostile judiciary.
The idea is to maintain separation of powers of all the organs. Pp. 177-180.

(b)​ ​The privilege, which will be broadly construed to effectuate its purposes: ​Kilbourn v.
Thompson, 103 U.S. 168​(where the question was whether passing a resolution ordering arrest
was debate or speech and the Court held that the privilege should be read broadly, to include
not only "words spoken in debate," but anything "generally done in a session of the House by
any of its members in relation to the business before it)
Tenney v. Brandhove,​341 U.S. 367, the privilege was not only created to avoid private
suits but also to prevent legislative intimidation and accountability to the other
branches of government. Pp. 180-182.

(c)​ ​The Speech or Debate Clause prevents inquiry not only into the "content" of a
congressional speech but also into circumstances involving the motives for making it. Pp.
182-183.

(d) When the government argued that the Clause was not violated because the
allegation was specifically on conspiracy and the speech was brought up by the
defendant, it was held that the prosecution under a general criminal statute involving
inquiry into the motives related to the circumstances surrounding a congressional speech
is barred even though the offense is related to the alleged conspiracy rather than the
speech itself. Pp. 184-185.

2.​ ​The making of the speech, however, was only a part of the conspiracy charge. With all
references to this aspect of the conspiracy eliminated, we think the Government should not be
precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech
or Debate Clause.​The Government is not precluded from retrying the conspiracy count as
purged of all the elements offensive to the Speech or Debate Clause. P. 185.

3.​ ​The Court of Appeals held that Johnson was entitled to a new trial on the conflict of interest
counts because the admission of evidence concerning the speech aspect of the conspiracy count
was prejudicial on these other counts as well.

Group 6:

1. DeShany Joshua Case: 489 US 189

Facts:
· DeShany was a four-year old boy from Winnebago, Wisconsin. He was severely
beaten by his father, resulting in brain damage.

· The Winnebago County was informed about the boy many a time, that he might be
a victim of child abuse. Joshua was admitted to hospital many times between 1982 and
1984, and the county was informed about it.

· A case worker, assigned by the Department of Social Service (DSS), paid monthly
visits to Joshua’s home in 1983 and noted continuing suspicions of child abuse, but the
DSS took no action.

· In March 1984, Randy DeShany, father of the victim, beat DeShany Joshua so
severely that he fell into coma

· Mother of the boy brought this suit on behalf of her child against:

1. The County

2. Department of Social Services

3. Some employees of DSS

Claim:

The state department by failing to protect Joshua against risk of violence of which they
knew or should have known, have deprived him of his liberty without due process of law
(14​th​ amendment)

Court’s Judgement:

District Court:

States agency’s failure to render protective services to persons within its

jurisdiction does not violate the due process clause.

Court of Appeal for the Seventh Circuit:

Due process clause does not require a state or local entity to protect its
citizens from private violence.

Supreme Court:

Heard this case in Certiorari.

No duty to protect a boy from his father’s violence, so the County did not
deprive him of liberty in violation of due process clause because;
 1. Harm did not occur in state’s custody

2. State has no part in creation of the danger

Dissent (Brennan):

a. County had a constitutional duty to help the boy

b. Wisconsin child welfare system gave the DSS authority to intervene when
there is suspected child abuse

Dissent (Blackmun):

The fact that DSS knew about the child abuse and Deshany’s condition,
triggers a fundamental duty to aid the victim.

2. Roth v U.S.

Landmark case before the United States Supreme Court, which ​redefined the
Constitutional test for determining what constitutes obscene material unprotected by the
First Amendment​.

Facts:

· Roth operated a book-selling business in New York and was ​convicted of mailing
obscene circulars through the mail for advertising and selling a publication called
American Aphrodite containing literary erotica and nude photography, a book that was in
violation of a federal obscenity statute​.

· Roth's case was combined with Alberts v. California, in which a California

obscenity law was challenged by Alberts after his similar conviction for selling lewd and
obscene books in addition to composing and publishing obscene advertisements for his
products.

Issue:

Did either the ​federal or California's obscenity restrictions​, prohibiting the sale or transfer
of obscene materials through the mail, ​infringe upon the freedom of expression as
guaranteed by the First Amendment​?

Ruling: [Justice Brennan]

· The decisions of the Second Circuit Court of Appeals and the California Appellate
Department for Los Angeles County are ​affirmed​.
· ​The Court held that ​obscenity was not "within the area of constitutionally protected
speech or press."

· The First Amendment was ​not intended to protect every utterance or form of
expression, such as materials that were "utterly without redeeming social importance​."

· The Court rejected an earlier obscenity test provided in ​Regina v Hicklin (material
that deprave and corrupt those whose minds are open to such immoral influences), and
defined obscenity more strictly, and held that the test to determine obscenity was
"​whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to indecent interest​." [help
distinguish obscenity from free speech]

· The Court held that such a definition of obscenity gave sufficient fair warning and
satisfied the demands of Due Process.

· Brennan reaffirmed that obscenity was not protected by the First Amendment and
thus upheld the convictions of Roth and Alberts for publishing and sending obscene
material through the mail.

Concurring Opinion:​ [Justice Warren]

Chief Justice Warren ​worried that "broad language used here may eventually be applied
to the arts and sciences and freedom of communication generally​," but ​agreeing that
obscenity is not constitutionally protected​, concurred only in the judgment.

Dissent: [Justice Black and Doughlas]

Justices Hugo Black and William O. Douglas, First Amendment "literalists," dissented in
Roth, arguing vigorously that the First Amendment protected obscene material.

Dissent in Roth, but not Alberts: [Justice Harlan]

Justice John Marshall Harlan II dissented in Roth, involving a federal statute, but
concurred in Alberts, involving a state law, on the grounds that while states had broad
power to prosecute obscenity, the federal government did not.

3. Dada Amir Khan Case

Facts: The facts of this case were that the respondent Dada Amir Haider Khan was an
"old political worker" of "Communist Thought". He applied for the issuance of a passport
in 1974 but his application was refused in 1975. Therefore, he filed a writ petition In
Lahore High Court. He contended that the actions of authorities were mala fide, arbitrary
and that no law empowers the Government to refuse to issue a passport to a citizen. The
High Court ruled in petitioner`s favor. Therefore, government filed this appeal in the
Supreme Court.

Question: ​Whether non-issuance of passport to Mr. Dada Amir Khan was

unconstitutional and that government was not empowered to do such an act?

Reasoning: ​Firstly, the court stated that both Article 9 and article 4(2) of the constitution
does not allow any action detrimental to liberty of the person except in accordance with
the law. Similarly, article 15 allows every citizen to enter, leave and move freely in
Pakistan. Thus, these articles allow every citizen liberty to go abroad and to re‑enter
Pakistan for which Passport is essential. However, the court observed that this liberty is
subject to any law imposed in public interest. In relation to this, the court observed that
the section 13 of the Passport Act, 1974 is such a law which allows the government to
make regulations in accordance with purpose of the Passport Act i.e. to regulate the
departure entry into Pakistan and out of Pakistan. However, the court reasoned that
although government do possess the right to regulate the entry and exit of people into
Pakistan but this discretion of the government must be exercised fairly, reasonably, in
good faith, in an non-arbitrary fashion and in pursuance of the purpose for which the act
was enacted. In this case no chance of hearing any no special reason is given for
non-issuance of passport.

The court also rejected this reason for non-issuance of passport that the person belongs
to communist thought and may meet such person abroad by stating that world is filled
with communist thought and unless any evidence of any design against security of
Pakistan is present, there is nothing wrong discussing communism in an academic
manner.

The court also noted that right to leave Pakistan is closely associated with the right to
association and free will and is very important to inform oneself considering the present
nature of the world.

Decision: Therefore, the court decided that unless any concrete or reasonable evidence
is collected for non-issuance such as meeting the enemies of Pakistan, the government
can`t deprives the petitioner from his passport. Moreover, even if there is an evidence for
non-issuance, a chance to reply must be given to petitioner.

4. Alamdar Hussain v. Abdul Baseer Qureshi [PLD 1978 SC 121]

Facts:

The petitioner, a police sub-inspector, and two others were accused of torturing a person
while he was in police custody, as a result of which the person died subsequently. The
case was first tried under a special military court on the request of the prosecution
authority. But before the case came to a conclusion the martial law was lifted, and the
case went back to regular court. The petitioner was then tried by a magistrate. However,
it was closed due to lack of evidence. Then, upon a revision petition by the brother of the
deceased the session judge passed an order for new trial. Against this order the
petitioner filed a revision petition before High Court which was dismissed. Now the
petitioner has filed a writ petition in the Supreme Court. The basic contention of the
counsel for the petitioner is that, the petitioner has been prosecuted before three different
forums, so it is against the fundamental right provided by Article 13 of the Constitution of
1973, Under which, no person can be prosecuted or punished for the same offence more
than once.

Held:

The court observed that the fundamental rights provided by the constitution are
suspended by Article 2(3) of the laws (continuance in force) order, 1977. So, no
proceeding for their enforcement are presently competent. But the court discussed the
merits of the case.

The Court first analyzed the word prosecution. Pursuing different dictionary meanings, it
concluded that, “prosecution” means “commencing, conducting and carrying a suit to a
conclusion in a court of justice.” The same meaning can be attributed to the word used in
A13. So, A13 gives protection against double punishment, once the prosecution has
finally concluded either in acquittal or conviction a fresh prosecution for the same offence
would be barred.

The court held that, none of the forums who tried the case pursued to the end, with the
view to its accomplishment, so it cannot be said that the prosecution is complete, and it is
against A13 of the Constitution.

5. Abdul Aziz Case Notes

Facts: The appellants were in preventive detention for six months by the West Pakistan
Government which was extended from time to time. These orders were made under S. 3
of the Punjab Public Safety Act, 1949. The condition of such an order was "to prevent
any person from acting in any manner prejudicial to public safety or the maintenance of
public order". It is provided by the section that no order of detention or of extension of
detention shall be for a period of more than six months at a time, thus allowing a period
in excess of three months. Another provision included in this section enables the
Government at any time to release a person detained under the statute.

The article 7(4) of the 1956 Constitution states that: "No law providing for preventive
detention shall authorise the detention of a person for a period exceeding three months
unless the appropriate Advisory Board has reported before the expiration of the said
period of three months that there is, in its opinion, sufficient cause for such detention.”

The article 7(5) states that when any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority making the order shall, as
soon as may be, ​communicate to such person the grounds on which the order has been
made and shall afford ​him the earliest opportunity of making a representation against the
​ rovided that ​the authority making any such order may refuse to disclose facts
order. P
which such authority considers being against the public interest to disclose."

Question​: Whether the section 3 of the Punjab Public Safety Act is violating article 7(4)
and article 7(5) of the Constitution by not providing the provision for the advisory board
and not making the provision for communicating the grounds of detention and the
allowance of counsel?

Context​: Previously, the Punjab Public Safety Act, 1949, was amended by means of an
Ordinance entitled the West Pakistan Preventive Detention Laws Ordinance, 1956,
whereby subsections of S. 3 were replaced. The new subsections provided that a detenu
under the Act should be informed of the grounds on which he has been detained, and
that he may make a representation against the order. Further, where the order of
detention was for a period exceeding three months, the authority making that order was
to place before "the Advisory Board” the grounds of the detention and any representation
made by the detenu. The Advisory Board was empowered to call for further information
from both parties and either party and to report within the time limited by the Constitution,
whether "in its opinion there is any sufficient cause for such detention”. However, by the
operation of Article 102 of the Constitution, the ordinance ceased to have operation six
weeks after the commencement of the sitting of the Provincial Legislative Assembly next
following after its promulgation.

Reasoning: In relation to the non‑availability of counsel and communicating the

charges, the court stated that clause (5) of Article 7 guarantees certain rights to the
detenu, but does not prescribe that the detention law such as the statute must
necessarily contain such corresponding provision and that authority can refrain from
disclosing fact if they deem against the public order.

In relation to the compatibility of the article 7(4) with the section 3, the court observed
that pith and substance of the article 7 relates to the provisions for the safeguards of
arrests and detention and relates to the liberty of person. Thus, it is clearly laying down
law in a field, which is included in the large subject of the liberty of persons under the
law. Thus, the court observed that article 7(4) is not of organic nature i.e. it does not
authorize the making of laws nor does it impose the conditions upon making laws relating
to preventive detention. In Article 7, there are general statements which are actually
operating as a statute giving a detailed character and do need a statute enabling the right
provided in this article. In summation, the article itself makes the law.

The court also agreed with the High Court that where the constitution requires that a
particular provision should be included in a statute, the constitution expressly states it as
visible in article 15 which states that a property can`t be taken except by reasonable
compensation. Therefore, article 7(4) of the constitution does not hit the statute on its
content. Article 7(4) only upon hits the person for whom the order of more than 3 months
detentions by the Advisory Board has been passed. Therefore, any detention under the
statute would itself be applied only after the advisory Board has approved and any order
in contrary would be void.

Thesis Statement: ​“Thus, the article 7(4) imposes a condition upon the power of
detention without trial vested in authorities under existing law that the satisfaction of the
detaining authority regarding the need for detaining a particular person shall not by itself
be sufficient for continuing that detention beyond an initial period of three months, unless
an Advisory Board, as prescribed, has concurred in the opinion held by the detaining
authority in that respect.”

Miscellaneous Points:

-The Chief' Justice of the West Pakistan High Court can rely on his powers conferred
upon him by clause (4) of Article 7 of the Constitution and that it does not need an
enabling statute

Similarly, any power conferred on chief justice to release detenu would not infringe as the
release sought in article 7(4) is requiring advisory board opinion in concurrence and any
power to release either by board or CJ would not infringe this concurrence of advisory
board.

Decision: For these reasons, we are of opinion that the validity of S. 3 of the Punjab
Public Safety Act is not affected by anything contained in clause (4) of Article 7 of the
Constitution.

Benazir Bhutto Case

CJ Haleem Judgment

Facts: Miss Benazir Bhutto filed a Constitutional Petition under Article 184(3) of the
Constitution. Her party was not able to participate in forthcoming elections as the party
has not registered in Election Commission in specified time period. She challenged the
amendments made in the Political Parties Act, 1962 under the 1977 Martial Law as in
violation of Articles 17(2) i.e. right to form political party. The amendments in the Political
Party Act made it mandatory for the election commission to register a political party
within 1 month of commencement of the Act or one month after its formation. It also
allowed election commission to dissolve a party on violations such as not filing an audit
reports, not holding elections.

Summary:

1st Question: Whether the requirement of aggrieved party is spelt out of the article 184(3)
and is reserved only for the article 199 and that what is the scope of the fundamental
rights which can be enforced through Supreme Court in article 184(3)?

The court considered this question through the purposive interpretation of article 184(3).
The court reasoned that the presence of the chapters of fundamental rights and
principles of policy successively in addition to objective resolution in the constitution
reflect that constitution aim at an egalitarian society. Therefore, to achieve this goal,
liberties in the constitution should be interpreted expansively. Justice Haleem further
ruled that for a creative and purposive interpretation of article 184(3) for upholding
socio-economic equality, the court is correlating three articles i.e. Article 3 which
envisions an end to exploitation, article 37 which aims at social justice and Article 38
which views those basic necessities should be provided by state. Moreover, the court
observed that if framers of constitution wanted fundamental rights to be narrowly
interpreted, they may state that in article 184(3). Lastly the court stated, to provide more
access of justice to people, the locus standi for the enforcement of fundamental rights
should also be case to case basis so that protection of all citizens in accordance with law
as mentioned in article 4 of the constitution is upheld.

Whether amendments in the political parties act can be declared inconsistent with
fundamental rights and can be challenged?

The court interpreted article 17(2) and extended it not only to form a party but also to
continue a political party. Therefore, dissolution of the entire party on mere violation of
the Act infringes the right to continue political party and gives arbitrary power to Election
Commission to determine the violation and dissolve the party. Moreover, additional
grounds of dissolution in the Political Parties Act such as damaging the Sanctity of Army
and Judiciary was considered as adding more meaning to the article 17(2) and was
considered void. Thus, the act was ex-facie discriminatory, the proof is not required that it
has been implemented in a prejudicial manner and can be challenged under 184(3).
Group 7:

Marbury v Madison

Facts

● At the end of President John Adam’s term, the Secretary of State failed to deliver the
documents affirming Marbury’s appointment as a Justice of the Peace. Once
Jefferson1!¹Appp was elected, he told his Secretary of State, Madison, to not deliver
those documents. Marbury sued Madison asking the Supreme Court for a writ that would
demand Madison to deliver the documents to him.
Issue

● Whether the applicant has a right to the commission he demands

● Whether the right has been violated and the laws of the country afford him a remedy
● Whether the Supreme Court can issue a mandamus.

Rules

● S.13 of the Judiciary Act à The Supreme Court shall have ​[original] jurisdiction​ over all
cases of a civil nature where a state is a party, ... And shall have exclusively all such
jurisdiction of suits or proceedings against ambassadors, or other public ministers, .... And
the trial of issues in fact ... shall be by jury. The Supreme Court shall also have ​appellate
jurisdiction​ from the circuit courts and courts of the several states, in the cases herein
after specially provided for; and ​shall have power to issue​ ... ​writs of mandamus,​ in
cases warranted by the principles and usages of law, to any courts appointed, or persons
holding office, under the authority of the United States.

Application

● The applicant has a right to the commission he demands as the official signature and seal
of the Secretary of State was on the documents. Enough to constitute appointment.
● Withholding the letter was a violation of that right.
● Writ of mandamus a valid mechanism to obtain those documents. As long as the involved
a mandatory duty to a specific person, the court could provide the remedy.
● Under the Judiciary Act, the court held that the writ of mandamus was not just restricted to
the Supreme Court’s appellate jurisdiction, but also to its original jurisdiction.
● This extension of jurisdiction clashes with the constitutional article 3 as the state was not
a party. The court held that they were bound by the constitution and cannot increase the
jurisdiction provided by the Constitution. Thus, s.13 of Judiciary Act is invalid.
● If two laws conflict with each other, the court must see whether one is superior to the
other.
● The judiciary must be able to determine whether a law is valid or invalid. The court had
the power, under the Constitution, to strike down laws that are contrary to the
Constitution.
● The judiciary is separate from the legislature. Its role is to ensure that the legislature
remains within its bounds under the authority that it is given by the Constitution.
Johnson v Zerbst (waiver of fundamental right)
304 US 458 1938

Facts

- The petitioner was convicted for possessing and uttering counterfeit money – four counterfeit
twenty-dollar federal reserve notes.

- The petitioner was denied habeas corpus by the District Court while imprisoned. Appealed to
the Circuit Court of Appeals.

- Petitioner had waived his right to legal counsel. The state of South Carolina could not appoint
counsel unless the defendant was charged with a capital crime.

- Never displayed any intention to speak to a lawyer.

- At the appeal, petitioner contended he was ignorant of his right to counsel, and was incapable
of preserving his legal and constitutional rights during trial. Did not have the requisite
knowledge and skills to conduct an appeal.

Issue

- Whether the petitioner had a right to waive his right to counsel as provided under the Sixth
Amendment.

Rule

- Sixth Amendment to the Constitution.

● Waiver of counsel must be done intelligently and competently.

● Must determine that assistance of counsel is no longer necessary.

- Patton v United States (281 US 276) – an accused may consent to a jury of eleven and waive
right to trial and verdict by constitutional jury of twelve men.

Application

- ‘That which may be simple to the lawyer may be complex to the layman’. The Sixth
Amendment withholds from federal courts the authority to deprive an accused of his life or
liberty unless he has or waives the assistance of counsel.
- The District Judge held that the proceedings depriving the petitioner of his constitutional right
to assistance of counsel were not sufficient to make the trial void.

● Unfortunate if petitioners lost their right to a new trial through ignorance or negligence.
Court does not have jurisdiction to correct the errors.

- To properly waive this right, the accused must have done so competently and intelligently.

- Sixth Amendment constitutionally entitles an accused to assistance of counsel. Compliance

with this is an essential jurisdiction prerequisite to a federal court’s authority to deprive an
accused of his life or liberty.

- Petitioner was convicted without enjoying the assistance of counsel. District Judge did not see
whether he had competently and intelligently waived his right to counsel.

- Concurrence and dissent

● Reed – concurred
● McReynolds and Butler – judgment of the District Court should be affirmed. Butler stated
that the accused had waived his right to counsel competently.

Conclusion

- Conviction reversed.

East Pakistan v Roshan Bijya and Shaukat Ali Khan

(1965) - Article 10
- Members of a secret association which attempted to destabilise the province of East
Pakistan.

- 20th September arrest, not produced before magistrate within 24 hours. 26th Sepember,
order passed by appellant ot continue detention.

- East Pakistan Public Safety Ordinance 1958 – sections 17 and 41.

- S.17 – an order of detention if government is satisfied that it is necessary to prevent him from
doing any prejudicial act.

● Endangering communal harmony, public safety or maintenance of public order

● Bring into hatred or contempt or to excite disaffections towards the government
● To disrupt the stabliiyt or integrity of the province.
- S.41 – such an arrest may only be made by police officers ranked at least as Sub-Inspector.
May be made without the warrant but necessary that person arrested is suspected of having
done one or more prejudicial act.

- Fundamental rights no.2 that a person who is arrested should be informed of his rights. Does
not apply for preventive detention.

- No suspicion, therefore arrest under s.41 invalid. Held to be abused because it was used
mala fide.

- No grounds were informed, which is the requirement for preventive detention. Was only
informed on the 26th of September.

- Kaikus – judicial review extends to seeing whether laws violate the constitution (fundamental
right). Section 41 inconsistent Article 6(2)(1) and 6(2)(2) of the 1963 COnsitutoin Amendment
Act.

Rhode Island v Innis - Article 13

This case set the precedent for what constitutes an interrogation for Miranda purposes. For this,
the interaction is not limited to just verbal communications between an officer and a suspect.
However, when a suspect responds to a police remark that is not reasonably expected to elicit an
incriminating response, the statement made by the officer is not automatically an interrogation.

Facts:
Innis was convicted of murder, robbery and kidnapping. When arrested, Innis was unarmed and
read his Miranda rights. The arresting officers suspected that a gun was hidden close to where
he was apprehended. Innis told the officers that he knew his rights and wanted an attorney. After
being placed in the back of a squad car, the officers began discussing their concerns regarding
the location of the gun and its proximity to a nearby handicapped school. The officers specifically
voiced their fear that a child may find the gun and harm themselves or another child. In response,
Innis disclosed the location of the gun to the officers because he did not want any children to get
hurt. At trial, the judge held that Innis had properly received his Miranda rights and that the
officers addressing their concerns for the children in the presence of Innis was understandable.
As a result, the gun and the statement were introduced at trial.

On appeal, the state supreme court reversed the trial court’s decision. The Supreme Court of the
United States granted Certiorari.

Rule of Law:
Interrogation refers to any words or conduct by the police that they should know may reasonably
elicit an incriminating response from the suspect.

Issue:​Under Miranda is a person interrogated when they are in a squad car with an officer who
​ o.
expresses their concerns for the safety of the public?​ N

Reasoning:
The Court reversed the state supreme court’s judgment.

An interrogation for purposes of Miranda occurs when an officer should reasonably know that
their own comments may elicit an incriminating statement by a suspect. When statements are
made amongst officers, those statements do not qualify as an interrogation. However, an
interrogation is not limited to situations where police are specifically questioning a suspect,
because the whole point of the Miranda opinion was centered on the interaction between the
police and the suspect in its entirety.

For purposes of Miranda these interactions include line ups, psychological ploys in addition to
direct questioning. The Court held that as a result, Miranda applies to a suspect who is subject to
questioning as well any procedural equivalent.

Here, the facts do not indicate that the officers actually knew or should have known that Innis
would confess to the guns location based on his sensitivity for handicapped children. The record
does not reflect that the officers were attempting to conjure a response from Innis or that the
officers should have known their remarks made amongst each other would elicit a response.

Wajid Shamas-ul-Hassan v. Federation ... (PLD 1997 Lahore 617) - Article

15

·​ Provision of S 2 Exit from Pakistan Control Ordinance 1981

​

·​ ​Failed to provide any guidelines or reasonable classification for taking action against
person prohibiting him from travelling abroad. Even the rights of citizens being heard or
of knowing the reason behind this action was denied, so discriminatory. Not necessary to
show cause under 2(2)

·​ Hence Section 3 (review) redundant.

​

·​ A 2A, 4, 9, 15, 25
​

·​ ​The petitioner was appointed Pakistan’s High Commissioner to UK 1994. Contract

terminated in 1996 and then he was placed on Exit Control List.

·​ ​Writ petition filed to call in question the validity of order. Petition dismissed with
direction to Petitioner to avail the remedy of review under S 3
·​ Representation of review was also rejected.
​

·​ Petition against placing his name on exit control list

​

·​ Right to travel is part of liberty (A9)

​

·​ Right of movement (A 15)

​

·​ ​No reasons were given as to why the passport could not issued. Old political worker
of communist thoughts was not valid.

·​ ​Order was struck down but no final opinion on the Constitutionality and validity of the
ordinance given as this was not specifically challenged in the petition.

Hassan and Chaush v Bulgaria Case - Article 17 and 20

● alleged enforced replacement of the leadership of the Muslim religious community in

Bulgaria and the ensuing administrative and judicial proceedings.
● Hasan was Chief Mufti of the Bulgarian Muslims from 1992 and Chaush was a Muslim
teacher, then secretary of the Islamic Institute in Sofia
● The previous chief mufti was ousted concerning allegations of collaborating with the
Communist regime. Hassan was elected as Chief Mufti in his place. However the
previous chief mufti held a seperate meeting and changed the statutes to elect himself
chief mufti again
● The applicants invoke Articles 6, 9, 11 and 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention
● The earlier report of the commission stated that there was no violation of Article 1 of
Protocol No 1 nor was there a violation of articles 6, 9 and 13 of the convention
● A group subsequently occupied the Offices of the Chief Mufti and seized all their
papers and assets.
● The government refused to support the applicant, Hasan the Chief Mufti, as they had
acknowledged the statute of November 1994, claiming that there could not be two
Islamic organizations.
● Various negotiations were held with the directorate of religious organisations whereby
the decision of the government decreed that the renegade chief mufti had not been
selected and thus could not lead the bulgarian muslims in the intervening years
● The applicants complained that the state had interfered with their right to organise
their faith and the Government countered that they had in no way hindered
expressions of religious belief e.g. prayer and other manifestations.
● The Court maintained that it is not every act of manifestation that is guaranteed as a
right of religious expression, but that the ‘personality of the religious ministers is
 undoubtedly of importance to every member of the community. Participation in the life
of the community is thus a manifestation of one’s religion, protected by Article 9 of the
Convention.’ ‘Where the organisation of the religious community is at issue, Article 9
of the Convention must be interpreted in the light of Article 11, which safeguards
associative life against unjustified State interference

Group 8:

Federation of Pakistan v. Moulvi Tamizuddin Khan – PLD 1955 Federal Court 240
(democracy, function of legislature)

● Section 6(3) of the Indian Independence Act, 1947 gave the Governor-General of
the new dominions full powers to assent any law of the legislature of the
dominions.
● Proclamation challenged by Maulvi Tamizuddin Khan, President of Constituent
Assembly
■ Praying that a writ (under section 233-A) in the nature of mandamus
be issued against the federation of Pakistan and the members of the
reconstituted Council of Ministers, restraining them from
implementing the aforesaid proclamation and to prohibit them from
interfering with the exercise of his i.e. (Maulvi Tamizuddin Khan’s)
functions as President of the Constituent Assembly, and to issue a
second writ of Quo warranto with a view to determining the validity of
the appointment of the members of the reconstituted Council of
Ministers.
○ Sindh High Court ruled in Maulvi Tamzuddin Khan’s favor
■ It held that the Acts of the Constituent Assembly, when it did not
function as the Federal legislature did not require the
Governor-General's consent.
○ Federal Court ruled in favor of the Governor-General
■ Section 233A of the Government of India Act, by virtue of which the
Sindh High Court issued the writs in favor of Maulvi Tamizuddin
Khan was not law as yet because it had not received the assent of
the Governor-General.
■ ​Court further held that the Governor-General is a constituent part of
the legislature, by virtue of the section aforesaid.
■ ​Legislation is the exercise of a high prerogative power and even
where it is delegated by statute or charter to a legislature, in theory it
is always subject to assent whether that assent be given by – the
 King or by a person nominated by the King. In the British system
there is not a single instance to the contrary. That necessity was
enjoined in the case of Pakistan so long as it continued to be a
Dominion, though it was open to that Dominion, if the
Governor-General gave assent to a bill of secession to repudiate its
Dominion status.
○ ​Democracy defined
■ ​In the first sense democracy is a subjective attitude, by which the
members of the community secure to everyone his rights regardless
or color or race.
■ ​It is essentially an attitude towards life.
■ ​As a mode of government, democracy involves a study of basic
principles on which political institutions ought to be founded as well
as of the actual mechanism to be employed in particular conditions.
■ The basic idea on which such form of government rests is that of
self-rule of the people of freely elected representatives’ institutions
and of an executive responsible to the people.
○ The Most significant point in the judgement of the Federal court was that it
did not go into the question whether the constituent assembly was rightly
dissolved by the Governor-general.
● ​Dissenting Remarks of Justice Cornelius:

○ ​There is no obligation that all laws made by the Constituent assembly of a

constitutional nature require the assent of the Governor-general for their
validity and operation because
■ Our practice demonstrates the denial of allegiance to the British
Sovereign, for example, Muhammad Ali Jinnah refused to take oath
as per the British tradition; and secondly, Governor-General Ghulam
Muhammad did not send his assent upon the accession to British
throne of Queen Elizabeth II, as was tradition; which means we are
governing this region in a different way.
■ The Constituent Assembly was to be placed above the
Governor-General, the Chief Executive of the state, for two reasons
● Constituent assembly was a sovereign body
● 1and secondly because the statute under which the
Governor-General was required to function, were within the
competence of Constituent assembly to amend.
■ There could be no doubt that neither the British Sovereign nor the
Governor-General, as such was part of the Constituent assembly.

Bousher v. Syur 1986 478 US 711

The case essentially revolves around the question of constitutionality of
Gramm-Rudman-Hollings Act as it grants powers to Comptroller general which violate the
doctrine of separation of powers.

Within hours of the President's signing of the Act,' Congressman Ssame ynar, who had voted
against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional.
Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was
also filed by the National Treasury Employees Union. The Union alleged that its members had
been injured as a result of the Act's automatic spending reduction provisions, which have
suspended certain cost-of-living benefit increases to the Union's members.'

A threshold issue was whether the Members of Congress, members of the National Treasury
Employees Union, or the Union itself had standing to challenge the constitutionality of the Act in
question. It was held that they do have standing to challenge the constitutionality

CHIEF JUSTICE BURGER delivered the opinion of the Court.

​Facts:

● ​·​ ​ ​In order to eliminate the federal budget deficit, Congress enacted the Balanced
Budget and Emergency Deficit Control Act of 1985
● ·​ ​This Act basically specified the maximum federal spending from fiscal years

1986-1991
● ·​ ​ ​If in any fiscal year the budget deficit exceeds the maximum by more than a specified
sum, the Act requires across-theboard cuts in federal spending to reach the targeted
deficit level.
● ·​ ​This was done so under the "reporting provisions" spelled out in § 251 of the Act,

which requires the Directors of the Office of Management and Budget (OMB) and the
Congressional Budget Office (CBO) to submit their deficit estimates and
program-by-program budget reduction calculations to the Comptroller General.
● ·​ ​ ​Comptroller general reviews the Directors' joint report, then reports his conclusions to
the President. The President in turn must issue a "sequestration" order mandating the
spending reductions specified by the Comptroller General, and the sequestration order
becomes effective unless, within a specified time, Congress legislates reductions to
obviate the need for the sequestration order. The Act also contains in § 274(f) a "fallback"
deficit reduction process (eliminating the Comptroller General's participation) to take effect
if § 251's reporting provisions are invalidated.
● ·​ ​In consolidated actions in the Federal District Court, individual Congressmen and the

National Treasury Employees Union (Union) (who, along with one of the Union's
members, are appellees here) challenged the Act's constitutionality.
● ·​ ​The court held, inter alia, that the Comptroller General's role in exercising executive

functions under the Act's deficit reduction process violated the constitutionally imposed
doctrine of separation of powers because the Comptroller General is removable only by a
congressional joint resolution or by impeachment, and Congress may not retain the power
of removal over an officer performing executive powers.
●
● The powers vested in the Comptroller General under section 251 violate the Constitution's
command that Congress plays no direct role in the execution of the laws.
● Congress cannot reserve the ​authority to remove an officer charged with the
execution of law, except for impeachment.
● The structure of the Constitution does not permit Congress to execute the laws; it
follows that Congress cannot grant to an officer under its control what it does not
possess.
● It cannot be said that because Comptroller general is nominated by the President
& the Senate and also performs his duty independently, he is not subservient to
the Congress. ​The fact remains that he can be removed by the Congress is
enough.
● Moreover, he may be removed not only by impeachment but also by joint
resolution of Congress "at any time" for specified causes, including "inefficiency,"
"neglect of duty," and "malfeasance." The quoted terms, as interpreted by
Congress, could sustain removal of a Comptroller General for any number of
actual or perceived transgressions of the legislative will.
● Comptroller General is susceptible to Congress’s influence. He is head of the
Accounts office pertinent statutes is "an instrumentality of the United States
Government independent of the executive departments," and Congress has
consistently viewed the Comptroller General as an officer of the Legislative
Branch.
● Thus, because Congress has retained removal authority over the Comptroller
General, he may not be entrusted with executive powers.
● By placing the responsibility for execution of the Act in the hands of an officer who
is subject to removal only by itself, Congress in effect has retained control over the
Act's execution and has unconstitutionally intruded into the executive function.
● The court cited the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579, 635 (1952) which stated that the purpose of separating and dividing the
powers of government, was to ​"diffus[e] power the better to secure liberty."
● 'there can be no liberty where the legislative and executive powers are united in
the same person, or body of magistrates' ...." The Federalist No. 47, p. 325
● this system of division and separation of powers produces conflicts, confusion,
and discordance at times is inherent, but it was deliberately so structured to
assure full, vigorous, and open debate on the great issues affecting the people
and to provide avenues for the operation of checks on the exercise of
governmental power. The Constitution does not contemplate an active role for
Congress in the supervision of officers charged with the execution of the laws it
enacts.
● In the First Congress meeting of 1789 James Madison urged rejection of a
congressional role in the removal of Executive Branch officers, other than by
impeachment. He said that such mingling of the Executive and legislative
Manzoor Elahi Case

There are three matters before the Court.

The first of the two ​petitions is moved by Ch. Manzur Ilahi under Article 184(3)​ of the
Constitution of the Islamic Republic of Pakistan, 1973,​ for release from custody of his
brother Ch. Zahur Ilahi​, Member, National Assembly.

The second ​petition is filed by the Government of Pakistan​ through the Secretary,
Tribal Areas, for ​review of the judgment delivered by this Court in the case of Umar
Gul v. Government of Pakistan and others​ (P L D 1973 S C 544). The majority
decision​ given in this case is that the ​President Order XI of 1961 which restored the
jurisdiction of the High Court of West Pakistan in relation to Tribal Areas did not
survive after coming into force of the Constitution of 1962 as no direction to that
effect was given by the President as required by clause (1) of Article 223.

Criminal Appeal​ No. 2 of 1974 is​ by the Province of Baluchistan​ ​against the order
passed by a Division Bench of the Sind & Baluchistan High Court ​in the case of
Malik Ghulam Jilani v. The Province of Baluchistan and the Assistant Commissioner,
Kohlu. By the impugned order the High Court has ​held that it has jurisdiction to issue
writs in relation to Tribal Areas of Quetta Division in the Province ofBaluchistan
where Ch. Zahur Ilahi was under detention at the relevant time.

making mention of the Proclamation of Emergency` because it was in force on November

12, 1973, when the prisoner was arrested from his house in Gulberg, Lahore. An Order
was also made by the President on August 15, 176973, that the right to move any Court
co, the enforcement of Fundamental Rights specified in Articles 10, 15, 16, 17, 18, 19,
23, 24, 25 and 27 of the Constitution shall remain suspended for the period
during which the Proclamation is in force

Judgement

Contention that Zahoor Ilahi in illegal custody for malafide intentions.

No written reply was filed by the State or the Province of Baluchistan, 'but it was
contended from the bar on their behalf that it was not a fit case in which this Court will
exercise jurisdiction under Article 184(3) of the Constitution and that in any case clause
(7) of Article 247 was a complete bar to the exercise of jurisdiction by this Court in
relation to a Tribal Area where the prisoner was in custody.
If the President is satisfied that a grave emergency exists in which the security of
Pakistan is threatened, he may under Article 232 issue a Proclamation of Emergency.
When such a Proclamation is in force the State may make temporary laws repugnant to
Fundamental Rights 15, 16, 17, 18, 19, and 24 which secure for the citizens freedom of
movement, freedom of assembly, freedom of association, freedom of trade, business or
profession, freedom of speech and protection of property rights. Thus ​even in
case of Emergency the State cannot make laws, which are violative of the
remaining Fundamental Rights including Rights contained in Article 9 and Article
10.

The power conferred on the High Courts by this Article (199) cannot, therefore, be
suspended while the Proclamation of Emergency is in force.

Fundamental Rights are so firmly entrenched in the Constitution that even while the
Proclamation of Emergency is in force, every citizen will enjoy his/her rights under Article
9, 10.

Since Articles 9 and 10 are not included in Article 232 (1), referred to above, the State
shall not frame any law even while the Proclamation of Emergency is in force in
contravention of these rights.
’
If such a law is enacted, any act done of proceeding undertaken under it, shall
be struck down by a High Court under Article 199 as without lawful authority and of no
legal effect.

This result will follow even if the President has by an Order declared that the right to
move any Court for the enjoyment of these Fundamental Rights shall remain suspended
while the Proclamation of Emergency is in force, for, as said earlier, Article 233 does not
permit the State to nuke laws which are inconsistent with the Fundamental Rights other
than the Rights specified in Articles 15, 16, 17, 18, 19, and 24.

Consequently if a person is taken into custody under a law which is violative of Articles 9
and 10, a High Court will under Article 199 (1) (b) issue a writ of habeas corpus and
direct his release forthwith.

As Article 9 is not specified in the Order issued by the President,

the right to move a High Court under Article 199 and to move this Court under Article 184
(3) for as enforcement is not affected by the Presidential Order.

We are not concerned at this stage with the legality of the trial of the prisoner
which has not yet commenced but as in Yousaf uddin v. Queen Empress we are dealing
with the ​legality of his arrest.​ If it is found to be i​llegal the prisoner will be discharged
though he may again be taken into custody in accordance with law and placed for
trial before a Court of competent jurisdiction.

The trial of the prisoner, who neither resides in the tribal areas of Baluchistan nor has
allegedly committed any offence there, under section 11 of the Frontier Crimes
Regulation will not be, in accordance with `law' in the sense in which this term has been
used in Article 4 and Article 9 of the Constitution. This finding will certainly reflect on the
legality of his custody, but it does not preclude the State from placing him before a
Magistrate for trial in accordance with the provisions of the Code of Criminal Procedure.

As seen the prisoner was arrested in Lahore on November 12, 1973, any person could
thereupon approach this Court with an application under Article 184 (3) for a writ in
accordance with the provisions of Article 199 so as to satisfy the Court that the custody
of the prisoner was in accordance with law or otherwise.

the Fundamental Rights are not so unreal or fragile that the ingenuity of a police officer
and a fast moving conveyance can defeat them and render this Court helpless to give
redress though it may be satisfied that the arrest and the custody of the prisoner are not
in accordance with law.

I have reached that:

(i) the Court has jurisdiction to direct that the prisoner
be brought before it so that the Court may satisfy itself that he is not being held in
custody without lawful authority or in an unlawful manner;
(ii) that his arrest at Lahore on November 12, 1973 was not in accordance with law,
and (iii) that his trial at Kohlu under section 11 of the Frontier Crimes Regulation
will not be in accordance with `law'.

Berghuis v. Thompkins (2010 560 U.S. 370)

·​ F
​ acts

o​ ​A Michigan state court convicted Thompkins of first-degree murder,

assault with intent to commit murder, and several firearms related
charges.
o​ ​After exhausting his remedies in Michigan state court and federal
district court, he appealed before the United States Court of
Appeals for the sixth Circuit.
o​ ​On appeal, Thompkins argued that his confession was obtained in
violation of the Fifth Amendment and that he was denied effective
counsel at the trial.
o​ ​The Sixth circuit held that the Michigan Supreme Court’s finding
that Thompkins waived his Fifth Amendment right was
unreasonable because Thompkins refused to sign an
 acknowledgment that he had been informed of his Miranda rights
and rarely made eye contact with the officer throughout the tree
hour interview.
·​ I​ ssues
o​ D​ id the Sixth Circuit improperly expand the Miranda rule when it

held that defendant’s Fifth Amendment rights were violated?

§​ ​Miranda Rights - “You have the right to remain silent.
Anything you say can and will be used against you in a court
of law. You have the right to an attorney. If you cannot afford
an attorney, one will be provided for you.”
o​ ​Did the Sixth Court fail to give the state court deference when it
granted habeas corpus relief with respect to defendant’s
ineffective counsel argument when there was substantial evidence
of the defendant’s guilt?
·​ ​Conclusion
o​ ​Yes, and Yes
o​ ​The Supreme Court reversed the Sixth Circuit, holding that the state
court’s decision to reject Mr. Thompkins’ Miranda claim was
correct.
o​ ​The court reasoned that Mr. Thompkins failed to invoke his Miranda
rights to remain silent and to counsel because he failed to do
“unambiguously”.
o​ ​Moreover, the Court reasoned that Mr. Thompkins waived his
Miranda right to remain silent when he “knowingly and voluntarily”
made a statement to the police.
o​ ​The Court further held that, even if Mr. Thompkins’ counsel was
ineffective, he cannot show he was prejudiced by counsel’s
deficient performance – a prerequisite to establishing that his
Sixth Amendment rights were violated.
·​ ​Dissent
o​ ​The dissent reprimanded the majority for retreating from the broad
protections afforded by Miranda, stating that now a criminal
suspect waives his rights simply by uttering a “few one-word
responses.”

Mushtaq Awan v. the State

● The petitioner is a former member of the National Assembly,

Provincial Assembly Punjab
● Immediately after the dismissed of Federal and Provincial
governments, his name was placed on the Exit Control List by the
Federal Government.
● Challenged that done with ulterior motives, and it is violative of his
fundamental rights
● ground furnished by the Ministry of Interior to pass the impugned
order that he got his son appointed as Assistant Director, LDA
● counsel for petitioner: submitted that the impugned order has been
passed without any tenable ground, and that the order has been
passed under section 2 of the Exit From Pakistan (Control)
Ordinance, 1981
● (i) Whether the right to go abroad is a fundamental right, if so, is the
power vested in Government to regulate it under the Exit From
Pakistan. (control) Ordinance, 1981?
● Thus, the right to travel and go abroad is indeed a fundamental
right. However, its exercise can be regulated by law. The
Passports Act, 1974 and the Exit From Pakistan) Control)
Ordinance, 1981 are laws which in our context regulate it.
● The discretion vested in the executive authority has to be exercised
in the national interest.​ To ensure that this authority is exercised for
said national/public interest, we have to look for safeguards.​ External
vigilance by the Courts and purposive construction of statutes,
therefore, is called for.
● A closer look at both the enactment s ​(Passports Act and Exit From
Pakistan (Control) Ordinance, 1981) would show that if construed
together, the requirements of procedural fairness can be ensured
without compromising with compulsions of public or national interest​.
We noted in paras. 9 and 10 above that the main objective of both
the enactments is to regulate the exit of persons from Pakistan. The
former enactment (Passports Act) is confined to citizens holding
passports, whereas in the latter enactment the canvass appears to
be wider and the expression used is "such person". The former is an
act of the Parliament and there is a provision of prior notice whereas
the latter is an Ordinance promulgated by the Chief Martial Law
Administrator at a time when the Constitution of the country was:
"held in abeyance". It neither provides right of hearing nor lays down
parameters for the exercise of the authority vested in the Federal
Government. Notwithstanding the divergent elements which
permeate the two statutes i.e. procedural fairness in the former and
arbitrariness in the latter, ​both the laws are in "pari materia" to each
other. ​Both the laws have to be read and construed together.
● While construing the Ordinance (Ordinance XLVI of 1981) we have
to realize that the objective conditions have changed since 1981.
Today the Constitution, elected Government and Fundamental
 Rights stand restored. Having come to the conclusion that the ​two
statutes are in 'pari materia',
● cognizant of Articles 2A, 4 and 25 of the Constitution of Islamic
Republic of Pakistan, 1973 and mindful of our commitment to the
Universal Declaration of R Human Rights this Court is persuaded to
hold that all​ the safeguards of procedural fairness provided in
the Passports Act, 1974 shall have to be read into the Exit From
Pakistan (Control) Ordinance, 1981. ​A person whose name is
sought to be placed on Exit Control List shall have the same rights
including the rights of prior notice as provided in section 8(2) of the
Passports Act and notice could only be dispensed with in
exceptional circumstances provided in the said Act.

Group 9:

http://tns.thenews.com.pk/sir-robert-snelson-contempt-court/

Buckley-v-Valeo

99-1408

https://www.oyez.org/cases/1850-1900/98us145
Group 10:

Yankov v. BULGARIA

Facts:

➔ The case originated in The European court of human rights in an application

against the ‘Republic of Bulgaria’ under Article 34 of the “The European
convention of Human rights ” by the Bulgarian nationals Mr Asen Angelov Kostov
and Mr Hristo Yankov Yankov
➔ Article 34 ECHR sets forth criteria for the admissibility of individual applications to
the European Court of Human Rights and seeks to ensure that the right to lodge
individual applications can be exercised freely.
➔ 5 applicants filed an application against the criminal proceedings against them of a
theft that had been committed in 1993.
➔ They were all questioned and three out of these five applicant confessed to the
crime. This questioning was done under police framework.
➔ Later in January 2002 all of them were charged with theft.
➔ But they filed a case in the district court and was remitted back because of
procedural breaches
➔ After 10 years, In 2004 the applicants were sentenced to three months
imprisonment suspended for a period of three years

1.The applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of
the Convention, which says that:

“In the determination of ... any criminal charge against him, everyone is
entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

2. Further complained of the lack of an effective remedy in respect the

excessive length of the proceedings against them. They relied on Article 13 of the
Convention, which says:

​“Everyone whose rights and freedoms as set forth in [the] Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in
an official capacity.

➔ The Government of Bulgaria argued that for the purposes of Article 6 of the
Convention the criminal proceedings commenced only on 29 January 2002 when
the applicants were charged. Thus, the Government contended that the
proceedings had lasted for about two years and ten months. Accordingly, they
considered that the applicants’ complaints should be rejected as being manifestly

ill-founded.
➔ Court Judgement:
● In the present case the applicants were caught by the police with the stolen
goods as early as 24 August 1993. They were questioned in connection to
that offence and confessed to taking part in its commission on 27 August
1993 and 2 September 1993 (see paragraphs 5 and 6 above). These
confessions constituted part of the materials under police investigation, on
the basis of which on 29 January 2002 these applicants were charged with
theft.
● Therefore the Court finds that in the present case the applicants’ situation
was “substantially affected” and they could be considered as subject to a
“charge” from the moment when they were questioned by the police and
confessed to the theft.

● There has accordingly been a breach of Article 6 § 1

● The Court reiterates that Article 13 guarantees an effective remedy before
a national authority for an alleged breach of the requirement under Article 6
 § 1 to hear a case within a reasonable time. Therefore there has been a
violation of article 13.
● Remedies are given to the violated applicants.

Nawaz Sharif vs President of Pakistan

Facts:

1. Differences with President

Although both Prime Minister Nawaz Sharif and President Ghulam Ishaq Khan
were conservatives, yet difference over authority emerged between them and
such difference were intensified in 1993

2. Address to Nation

In April 1993, Prime Minister Nawaz Sharif addressed nation and alleged that
some political elements had gathered under umbrella of President Ghulam Ishaq
Khan and were conspiring to overthrow his elected government.

3. Dissolution of National Assembly and Dismissal of PM

After Nawaz Sharif’s address to nation, President Ghulam Ishaq Khan states that
government of federation could not be carried out in accordance with provisions of
constitution of Pakistan. Therefore, he dissolved National Assembly and
dismissed Prime Minister Nawaz Sharif with his cabinet.

4. Institution of Case

After dissolution of National Assembly and dismissal of government, Nawaz Sharif

filed this case in Supreme Court of Pakistan.

➔ Judgement:

1. Unlawful action of President

In these circumstances, the dismissal of the Prime Minister along with his Cabinet
and the dissolution of the National Assembly under the purported exercise of
powers conferred on the President under Article 58(2)(b) could be upheld. The
action taken did not fall within the ambit of this provision. This unlawful action
moreover was also violation of Fundamental right.

2. Majority basis decision

By majority (of 10 to 1) it was held that the order of the April 1993, passed by the
President of Pakistan is not within the powers conferred on the President under
Article 58(2)(b) of the constitution and other enabling powers available to him in
that behalf and has, therefore, been passed without lawful authority and is of no
legal effect.

3. Consequence of Court order

 As consequences of our order, the National Assembly, Prime Minster and Minister
and the Cabinet shall stand restored and entitled to function as immediately before
the impugned order was passed.

➔ Conclusion:

To conclude, it can be stated that some political critics consider judgment of

Supreme Court in this case as a milestone in history of judiciary of Pakistan. They
explain this reason in favor of their opinion that it was for first time that President’s
exercise of powers under Article 58(2)(b) of constitution was not accepted and
was declared unconstitutional and illegal.

Group 11:

Group 12:
 Case Summaries (Post-Mid)

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Group 4:

Piare Dusaah vs King Emperor (F.C.) 1

In ​Piare Dusaah vs King Emperor (F.C.) 1​ the validity of the Special Criminal Courts Repeal
Ordinance (19 of 1943) was considered. By promulgating this Ordinance the Governor General
repealed fee Ordinance of 1942. The new Ordinance provided for confirmation and continuance of
sentences and retrial of pending cases under the repealed Ordinance. The appellant had been
convicted by a Special Criminal Court which, it was found, had no jurisdiction to try the case under the
repealed Ordinance. Section 3 (1) of the repealing Ordinance validated his con​viction and sentence
by conferring retrospec​tive jurisdiction upon the Court. It was con​tended that the legislature exercised
judicial power and as such the Ordinance was invalid. The contention was rejected and it was held
that the validation provision of the Ordinance was within the legislative competence and that their
validation did cot amount to an exer​cise of judicial power and the power validation was ancillary or
subsidiary to the power to make law.

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