বাংলাদেশের স্বাধীনতা যুদ্ধ দলিলপত্র (প্রথম খণ্ড)/১১৫
| শিরোনাম | সূত্র | তারিখ |
|---|---|---|
| প্রেসিডেণ্ট ইস্কান্দার মীর্জা কর্তৃক ঘোষিত ‘নিউলীগ্যাল অর্ডার’ এবং এ প্রসংগে প্রধান বিচারপতি মুনিরের বক্তব্য | ডকুমেণ্টস এ্যাণ্ড স্পীচেস অন দি কনষ্টিউশন অফ পাকিস্তান, জি, ডব্লিউ, চৌধুরী, পৃঃ ৪৮৯-৪৯৬ | ১০ইং অক্টোবর, ১৯৫৮ |
NEW LEGAL ORDER
Text of the order
1. (1) This order may be called the Laws (Continuance in Force) Order, 1958.
(2) It will come into force at once and be deemed to have taken effect immediately upon the making of the Proclamation of October 7, 1958, hereinafter referred to as the Proclamation.
(3) It extends to the whole of Pakistan.
2.(1) Notwithstanding the abrogation of the Constitution of March 23, 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any. Order of the President or regulation made by the Chief Administrator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution.
(2) Subject as aforesaid all courts in existence immediately before the Proclamation shall continue in being and, subject further to the provisions of this Order, in their powers and jurisdictions.
(3) They law declared by the Supreme Court shall be binding on all Courts in Pakistan.
(4) The Supreme Court and the High Court’s shall have power to issue the writs of habeas Corpus, mandamus, prohibition, quo warranto and certiorari.
(5) No writ shall be issued against the Chief Administrator of Martial Law or the Deputy Chief Administrator of Martial Law or any person exercising powers or jurisdiction under the authority of either.
(6) Where a writ has been sought against an authority which has been succeeded by an authority mentioned in the preceding clause, and the writ sought is a writ provided for in clause (4) of this Article, the Court notwithstanding that no writ may be issued against an authority so mentioned may send to that authority its opinion on a question of law raised.
(7) All orders and judgments made or given by the Supreme Court between the Proclamation and the promulgation of this Order are hereby declared and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all application and proceedings in respect of any writ which is not so provided for shall abate forthwith.
3. No Court or person shall call or permit to be called in question
(1) The Proclamation;
(ii) Any Order made in pursuance of the Proclamation or any Martial Law Order or Martial Law regulation;
(iii) Any finding, judgment or order of a special Military Court or a summary Military Court.
4. (1) Notwithstanding the abrogation of the late Constitution, and subject to any order of the President or regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all ordinances, orders-in-Council, orders other than orders made by the President under the late Constitution, such orders made by the President under the late Constitution as are set out in the Schedule to this Order, rules, by-laws regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof or having extra-territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority.
(2) In this Article a law is said to be in force if it has effect as law whether or not the law has been brought into operation.
(3) No Court shall call into question any adaptation made by the President under Clause (1).
Governor’s Powers
5. (1) The powers of the Governor shall be those which he would have had the President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinances as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force.
(2) In the exercise of the powers conferred by the previous clause the Governor shall act subject to any directions given to him by the President or by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator.
(3) Nothing in this Article shall prejudice the operation of any regulation made by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator of Martial Law to make martial law regulations and where any ordinance or any provision thereof made under clause (1) of this Article is repugnant to any such regulation or part thereof the Regulation or part shall prevail.
(6) All persons who immediately before the Proclamation where in the service of Pakistan as defined under Clause (1) of Article 218 of the late Constitution and those persons who immediately before the Proclamation were in office as Governor, Judge of the Supreme Court or a High Court, Comptroller and Auditor-General, Attorney-General or Advocate-General, shall continue in the said service or in the said office on the same terms and conditions and shall enjoy the same privileges, if any.
7. Any provision in any law providing for the reference of a detention order to an Advisory Board shall be of no effect.
Schedule
1. The Karachi Courts Order; 1956.
2. The Federal Capital (Essential Supplies) Order, 1956.
3. The Adaption (Security Laws) Order 1956 (Except so far as concerns of a detention order to an Advisory Board).
4. The Stamp Act (Amendment) Order, 1956.
5. The Essential Services (Maintenance of Powers) Order, 1956.
6. The Hoarding and Black Market Order, 1956.
7. The Karachi Courts (Amendment) Order, 1956.
8. The Karachi Rent Restriction Act (Amendment) Order, 1956.
9. The Requisitioned Land (Continuance of Powers) Order, 1956.
10. The University of Karachi (Amendment) Order, 1956.
11. The High Court’s (Bengal) Adaptation Order, 1956.
12. The Karachi Development Authority Order, 1957.
13. The Karachi Development Authority (Amendment) Order, 1958.
14. The High Court Judges (Daily Allowances) Order, 1958.
15. The Federal Capital (Powers and Duties of the Chief Commissioner) (Declaration) Order, 1958.
16. The Federal Capital Essential Supplies (Amendment) Order, 1958.
17. The Gwadur (Government and Administration) Order, 1958, except clause (2) of Article 2.
18. The Gwadur (Government and Administration) (Application of Laws) Order, 1958.
Chief Justice Md. Munir's Comment on the New Legal Order.
[Extract from his judgment. State vs. Dossa, Dacca Law Report. Vol. XI.)
By the Proclamation of October 7, the President annulled the Constitution of 23rd March, 1956, dismissed the Central Cabinet and the Provincial Cabinets and dissolved the National Assembly and both the Provincial Assemblies. Simultaneously. Martial Law was declared throughout the Country and General Mohammad Ayub Khan, Commander-in-Chief of the Pakistan Army, was appointed as the Chief Martial Law Administrator. Three days later was promulgated by the President the Laws (Continuance in Force) Order, the general effect of which is the validation of laws, other than the late Constitution, that were in force before the Proclamation, and restoration of the jurisdiction of all Courts including the Supreme Court and the High Courts. The Order contained the further direction that the Government of the Country, thereafter to be known as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution.
As we will have to interpret some of the provisions of this Order, it is necessary to appraise the existing constitutional position in the light of the juristic principles which determine the validity or otherwise of law-creating organs in modern States which, being members of the comity of Nations, are governed by International Law. In judging the validity of laws at a given time, one of the basic doctrines of legal positivism, on which the whole science of modern jurisprudence rests, requires a jurist to pre-suppose the validity of, historically, the first Constitution whether it was given by an internal usurper, an external invader or a national hero or by a popular or other assembly of persons, Subsequent alterations in the Constitution and the validity of all laws made there under is determined by the first Constitution. Where a Constitution presents such continuity, a law once made continues in force until it is repealed, altered or amended in accordance with the Constitution. It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order. A revolution is generally associated with public tumult, mutiny. violence and bloodshed but from a juristic point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial. The change may be attended by violence or it may be perfectly peaceful. It may take the form of a coupd'etat by a political adventurer or it may be effected by persons already in public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic impulse or by the most sordid of ends. For the purposes of the doctrine here explained, a change is, in law, a revolution if it annuls the Constitution and the annulment is effective. If the attempt to break the Constitution fails, those who sponsor or organise it are judged by the existing Constitution as guilty of the crime of treason. But if the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a law-creating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. In the circumstances supposed no new State is brought into existence though Aristotle thought otherwise. If the territory and the people remain substantially the same, there is, under the modem juristic doctrine, no change in the corpus or international entity of the State and the revolutionary Government and the new Constitution are, according to International Law, the legitimate Government and the valid Constitution of the State. Thus a victorious revolution or a successful coup d'etat is an internationally recognized legal method of changing a Constitution.
After a change of the character I have mentioned has taken place, the national legal order must for its validity depend upon the new law-creating organ. Even Courts lose their existing jurisdiction, and can function only to the extent and in the manner determined by the new Constitution. While on this subject, Hans Kelson, a renowned modern jurist, says:
“From a jurist’s point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new man whom a revolution brings to power annul only the Constitution and certain laws of paramount political significance, putting other forms in their place. A great part of the old legal order remains valid also within the frame of the new order. But the phrase remains valid does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old Constitution prescribed. That Constitution is no longer in force; it is replaced by a new Constitution, which is not the result of a constitutional alteration of the former. If laws which are introduced under the old Constitution continue to be valid under the new Constitution, this is possible only because validity has expressly or tacitly been vested in them by the new Constitution.
The laws which, in the ordinary inaccurate parlance, continue to be valid are, from a juristic view-point, new laws whose import coincides with that of old laws. They are not identical with the old laws, because the reasons for their validity are different. The reason for their validity is the new, not the old Constitution, and between the two, continuity holds neither from the point of view of the one nor from that of the other. Thus it is never the Constitution merely but always the entire legal order that is changed by a revolution.
This shows that all norms of the old order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure. No jurist would maintain that even after a successful revolution the old Constitution and the laws based thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by the old order itself. Every jurist will presume that the old order too to which no political reality any longer corresponds has ceased to be valid, and that all norms, which are valid within the new order, received their validity exclusively from the new Constitution. It follows that.
from this juristic point of view, the norms of the old order can no longer be recognized as valid norms.” (General Theory of Law & State, translated by Anders Wedberg, 20th Century Legal Philosophy Series, pp. 117-118).
Bearing in mind the principle just stated, let us now approach the question involved in these cases. If what I have already stated is correct, then the revolution having been successful it satisfies the text of efficacy and become a basic law-creating fact. On that assumption, the Laws (Continuance in force) order, however, transitory or imperfect it may be, is a new legal order and it is in accordance with that Order that the validity of the laws and the correctness of judicial decisions has to be determined. The relevant provisions of this Order are:
“Article 2-(1) Notwithstanding the abrogation of the Constitution of the 23rd March. 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution.
(4) The Supreme Court and the High Courts shall have power to issue the writs of habeas corpus, mandamus, prohibition,, quo warranto and certiorari.
Article 4-(1) Notwithstanding the abrogation of the late Constitution, and Subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders-in-Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution, as are set out in the Schedules to this Order, Rules, by laws. Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or haying extra-territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority.
(2) In this Article a law is said to be in force if it has effect as law whether or not the law has been brought into operation.
(3) No Court shall call into question any adaptation made by the President under clause (1).”
The Order applies to the situation that came into existence under the President's Proclamation of October 7. The laws that are in force after that date are enumerated in Article 4, but from the list of such laws the constitution of 23rd March, 1956, has been expressly excluded. This means that when under clause (4) of Article 2 of the order the Supreme Court or the High Court is moved for a writ, the ground for the writ can only be the infraction of any of the laws mentioned in Article 4, or any right recognized by the Order and not the violation of a right created by the late Constitution. The so-called fundamental rights which are described in part II of the late Constitution are, therefore, no longer a part of the national legal order and neither the Supreme Court nor High Court has under the new Order the authority to issue any writ on the ground of the violation of any of the fundamental rights. The very essence of a fundamental right is that it is more or less permanent and cannot be changed like the ordinary law. In Jibendra Kishore Acharya Chowdhury and 58 others vs. The Province of East Pakistan Secretary, Finance and Revenue (Revenue) Deptt. Govt, of East Pakistan (1), I had occasion to point out that the very conception of a fundamental right is that it, being a right guaranteed by the Constitution, cannot be taken away by the law and that it is not only technically inaccurate but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. Under the new legal order, any law may at any time be changed by the President and, therefore, there is no such thing as a fundamental right there being no restriction of the President's law-making power. Under Article 4 of the late Constitution there was a restriction on the power of the Legislature to make laws involving breaches of fundamental rights and invalidity attached to all existing laws, customs and usages and having the force of law if they were inconsistent with any of the fundamental rights: This test to determine the validity of the laws and the fetter on the power of the Legislature to make laws have both disappeared under the new order. Unless, here fore, the President expressly enacts the provisions, relating to fundamental rights, they are not a part of the law of the land and no writs can issue on their basis. It is true that Article 2 provides that Pakistan shall be governed as nearly as may be in accordance with the late Constitution but this provision does not have the effect of restoring fundamental rights because the reference to Government in this Article is to he structure and outline of Government and not to the laws of the late Constitution which have been expressly abrogated by Article 4. Article 2 and Article 4 can, therefore, stand together and there is no conflict between them. But even if some inconsistency be supposed to exist between the two, the provisions of Article 4 which are more specific and latter must override those of Article 2.
The position in regard to future application for Writs, therefore, is that they lie only on the ground that anyone or more of the laws mentioned in Article 4 or any other right preserved by the Laws (Continuance in Force) Order has been contravened.
As regards pending applications for writs already issued but which are either sub judice before the Supreme Court or require enforcement, the relevant provision is clause (7) of Article 2, which provides:
“All orders and judgments made and given by the Supreme Court between the Proclamation and the promulgation of this order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving these orders and judgments no writ or order for a writ issued or made after the Proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith.”
Analyzed, this provision means that, excepting the writ issued by the Supreme Court after the Proclamation and before the promulgation of the Order, no writ or order for a writ issued or made after the Proclamation shall have any legal effect unless the writ was issued on the ground that anyone or more of the laws mentioned in Article 4 of any other right kept alive by the new Order had been contravened. And if there be a pending application or proceeding in respect of a writ which is not covered by clause (4) of Article 2 or any other provision of the new Order, that is to say, the application or proceeding relates to a writ sought on the ground that a fundamental right has been contravened, then the application or the proceeding shall abate forthwith. This means that not only the application for the writ would abate but also the proceedings which require the enforcement of that writ. The abatement must, therefore, be held to govern all those writ which were the subject-matter of appeal before the Supreme Court either on certificate or by special leave. No judgment, order or Writ of a High Court can be considered to be final when either that Court has certified the case to be a fit one for appeal and proceeding for appeal have been taken or when the Supreme Court itself has granted special leave to appeal from that Judgment, order, or writ, I am, therefore, of the view that the writs issued by the High Court in this case are not final writs, and that all proceedings in connection with such writs including the original applications in the High Court, have abated.