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CONSTITUTION (AMENDMENT) ORDER, 1980

PRESIDENT’S ORDER 1 OF 1980

[Gazette of Pakistan, Extraordinary, Part 1, 27th May, 1980]

No. F. l7(2)/80 Pub.


The following Order made by the President on 26th May 1980 is hereby published for general information :-

In pursuance of the Proclamation of the fifth day of July 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1bsp; of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make the following Order—

1.
Short title and commencement.-
(l)
This Order may be called Constitution (Amendment) Order, 1980.
(2)
It shall come into force at once.

2.
Amendment of Article 199 of the Constitution.—
In the Constitution, in Article 199, after clause (3), the following new clauses shall be inserted, namely:-
"(3A)
Notwithstanding any judgment of any Court, including any judgement in respect of the powers of Courts relating to judicial review, a High Court shall not, under this Article,---
(a)
make an order relating to the validity or effect of, any Martial Law Regulation made by the Chief Martial Law Administrator or any Martial Law Order made by the Chief Martial Law Administrator or a Martial Law Administrator or of anything done, or action taken, or intended to be done or taken, thereunder:
(b)
make an order relating to the validity or effect of any judgement or sentence passed by a Military Court or Tribunal ;
(c)
grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of a Military Court or Tribunal extends and of which cognizance has been taken by a Military Court or Tribunal ; or
(d)
issues any process against the Chief Martial Law Administrator or a Martial Law Administrator or any person acting under the authority of either.
(3B)
Every such order, injunction or process as is referred to in clause (3-A) made, granted or issued at any time before or after the commencement of the Constitution (Amendment) Order, 1980, shall, notwithstanding any judgment of any Court, be null and void and of no effect whatsoever and any proceedings for the making, granting or issue of such order, injunction or process which may be pending before any Court, including in the Supreme Court and a High Court, shall abate.
(3C)
The proclamation of the fifth day of July 1977, all President’s Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations and Martial Law Orders made on or after the fifth day of July 1977, are hereby declared, notwithstanding any judgment of any Court, to have been validly made."

3.
Substitution of Chapter 3-A in Part VII of the Constitution.—
In the Constitution, in Part VII, for Chapter 3-A the following shall be substituted, namely:--

CHAPTER 3-A FEDERAL SHARIAT COURT


203A
Provisions of Chapter to override other provisions of the Constitution.—
The provisions of this Chapter shall have effect notwithstanding any thing contained in the Constitution.

203B
Definitions.—
In this Chapter, unless there is anything repugnant in the subject or context, --
(a)
"Chairman" means Chairman of the Court;
(b)
"Court" mean the Federal Shariat Court constituted in pursuance0 of Article 203-C;
(c)
"law" include any custom or usage having the force Of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of three years from commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure; and
(d)
"member" means member of the Court.

203C
The Federal Shariat Court.---
(1)
There shall be constituted for the purposes of this Chapter a Court to be called the Federal Shariat Court.
(2)
The Court shall consist of five members, including the Chairman, to be appointed by the President.
(3)
The Chairman shall be a person who is, or has been or is qualified to be a Judge of the Supreme Court and a member shall be a person who is, or has been or is qualified to be a Judge of a High Court.
(4)
The Chairman and a member shall hold office for a period not exceeding three years but may be appoint for such further term or terms as the President may determine:
Provided that a Judge of a High Court shall not be appointed to be a member for a period exceeding one year except with his consent and after consultation by the President with the Chief Justice of the High Court.
(5)
A Judge of a High Court who does not accept appointment as a member shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.
(6)
The Principal seat of the Court shall be at Islamabad, but the court may from time to time sit in such other places in Pakistan as the Chairman may, with the approval of the President, appoint.
(7)
Before entering upon office, the Chairman and a member shall make before the President or a person nominated by him oath in the form set out, in the Third Schedule.
(8)
At any time when the Chairman or a member is absent or is unable to perform the functions of his office, the President shall appoint another person qualified for the purpose to act as Chairman or, as the case may be, member.
(9)
A Chairman who is not a Judge of the Supreme Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of the Supreme Court and a member who is not a Judge of a High Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of a High Court.

203D
Powers, jurisdiction and functions of the Court.---
(1)
The Court may, on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.
(2)
If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision---
(a)
the reasons for its holding that opinion; and
(b)
the extent to which such law or provision is so repugnant; and spiffy the day on which the decision shall take effect.
(3)
If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,--
(a)
the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take step to amend the law so as to bring such law or provision in to conformity with the Injunctions of Islam; and
(b)
such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.
(4)
A decision of the Court shall be expressed in terms of the opinion of the majority of its members and shall be published in the official Gazette.

203E
Powers and procedure of the Court. ---
(1)
For the purposes of the performance of its functions, the Court shall have the powers of a Civil Court trying a suit under the Code of Civil Procedure 1908 (Act V of 1908), in respect of the following matters, namely:--
(a)
summoning and enforcing the attendance of any person and examining him on oath ;
(b)
requiring the discovery and production of any document ;
(c)
receiving evidence on affidavits ; and
(d)
issuing commissions for the examination of witnesses or documents.
(2)
The Court shall have power to conduct its proceedings and regulate its procedure in all respects as it deems fit.
(3)
The Court shall have the power of a High Court to punish its own contempt.
(4)
A party to any proceedings before the Court under clause (1) of Article 203-D may be represented by a legal practitioner who is a Muslim and has been enrolled as an Advocate of a High Court for a period of not less than five years or as an Advocate of the Supreme Court or by a jurisconsult selected by the party from out of a panel of jurisconsult maintained by the Court for the purpose.
(5)
For being eligible to have his name borne on the panel of jurisconsults referred to in clause (4), a person shall be an aalim who, in the opinion of the Court, is well-versed in Shariat.
(6)
A legal practitioner or jurisconsult representing a party before the Court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so for as may be known to him and submit to the Court a written statement of his interpretations of such Injunctions of Islam.
(7)
The court may invite any person in Pakistan or abroad whom the Court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him.
(8)
No Court fee shall be payable in respect of any petition or application made to the Court under this Article.

203F
Appeal to Supreme Court.---
(1)
Any party to any proceeding before the Court under Article 203-D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court.
(2)
The provisions of clauses (2) and (3) of Article 203-D and clauses (4) to (8) of Article 203-E shall apply to and in relation to the Supreme Court as if reference in those provision to Court were a reference to the Supreme Court.
(3)
For the purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in the Supreme Court a Bench consisting of three Muslim Judges of the Supreme Court, to be called the Shariat Appellate Bench, and reference in the proceeding clauses to "Supreme Court" shall be construed as a reference to the Shariat Appellate Bench.

203G
Bar of jurisdiction.---
Save as provided in Article 203-F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court.

203H
Pending proceedings to continue, etc.---
(1)
Subject to clause (2) nothing in this Chapter shall be deemed to require any proceedings pending in any court or tribunal immediately before the commencement of this Chapter or initiated after such commencement, to be adjourned or stay by reason only of a petition having been made to the Court for a decision as to whether or not a law or provision of law relevant to the decision of the point in issue in such proceedings is repugnant to the Injunctions of Islam ; and all such proceedings shall continue, and the point in issue therein shall be decided, in accordance with the law for the time being in force.
(2)
All proceedings under clause (1) of Article 203-B of the Constitution that may be pending before any High Court immediately before the commencement of this Chapter shall stand transferred to the Court and shall be dealt with by the Court from the stage from which they are so transferred.
(3)
Neither the Court nor the Supreme Court shall in the exercise of its jurisdiction under this Chapter have power to grant an injunction or make any interim order in relation to any proceeding pending in any other Court or tribunal.

203I
Administrative arrangement, etc.---
The Federal Government shall make all such administrative arrangements, and make available to the Court the services of such officers and experts, as it may consider necessary for the convenient performance of the functions of the Court.

203J
Power to make rules.---
(1)
The Court may, by notification in the official Gazette, make rules for carrying out the purposes of this Chapter.
(2)
In particular, and without prejudice to the generality of the foregoing power, such rules may make provision in respect of all or any of the following matters, namely:---
(a)
the scale of payment of honoraria to be made to jurisconsults, experts and witnesses summoned by the Court to defray the expenses, if any, incurred by them in attending for the purposes of the proceedings before the Court; and
(b)
the form of oath to be made by a jurisconsult expert or witness appearing before the Court.
(3)
Until rules are made under clause (1), the Shariat Benches of Superior Court Rules, 1979, shall, with the necessary modifications and so far as they are not in consistence with the provisions of this Chapter, continue in force.

4.
Amendment of Third Schedule to the Constitution.--- In the Constitution, in the Third Schedule, after the form of oath prescribed for the office of Chief Justice of Pakistan, the following form shall be inserted, namely:---
"Chairman or member of Federal Shariat Court
Article 203-C (7).

I, ___________________, do solemnly swear that, as the Chairman (or a member) of the Federal Shariat Court, I will discharge my duties, and perform my functions, honestly, to the best of my ability and faithfully in accordance with law; And that I will not allow my personal interest to influence my official conduct or my official decisions."


Thanks:: Mr Abdul Hameed Cheema (ahchima@brain.net.pk)
shehzaad@cs.stanford.edu