Session 4 

Tamizuddin case (1955) 

- Constituent Assembly was dissolved by Governor General.  
- Pakistan is an independent state 
- Assembly was a sovereign body 
- Assembly could make/amend the constitution. The Governor General is a part of it, not above it. 
Therefore, his assent is not needed to assent laws.  
- 1951 Pindi Conspiracy Case 
- Liaquat Ali Khan said that the coup in army. 
- Many army members caught. 
- Charges that conspiracy against King (Still loyal to them) 
- The legislative was weak as not really from Pakistan. The ruling was very weak.  
 

Mian Iftikharuddin case (1961) 

- The Paper Pakistan Times was spreading socialist ideas. 
- After martial law, there was a question whether the Chief Minister could make as many laws as 
possible. 
- 14 April 1950 - Pakistan Times was taken over and given to Sarfaraz. 
- Whether the President has continuous power under the force of martial law or is it for a particular 
time period. Structure and manner of the government 
 

Sir Edward Snelson case 

- Wanted to give a speech in Pindi where he started criticising the government.  
- This was done in private and was not allowed to be spread but was still published in 2000 copies. 
- 14,000 writs from 1940-1970. Pakistan was the most litigant country.  
- Instance of contempt of court as he was a law secretary. 
- HC found him guilty. Appealed to Supreme Court, which still found him guilty, fined for Rs. 
2000, resigned from office.  

Mamukanjan Cotton Factory case 

- Retroactive v retrospective legislation 
- Retrospective - factories running on diesel will now pay taxes as well as all taxes of the past 
under West Punjab Cotton Control Act 1932.  
- Argued that retrospective legislation is unfair. 
- Court ruled it ultadjusted accordingly. 
 - In 1971, the government said that the tax should be paid via a new act - undid the court’s decision. 
- Legislative has the authoritra vires and said those people who have made retrospective payments 
will have their future payments y that is ‘remedial and curative’, not to decide the law itself. 
- Can the legislature undo a rule or a decision passed by the courts? NO. 

Qazi Wali Muhammad case 

- Does the judiciary have the power to make rules for its employees in the parliament? 
- Wali Muhammad was fired by the Chief Justice. 
- Brought claim to tribunal. Said that he was a civil servant under Civil Servant Act 1983. 
- Article 250 - services of Pakistan - appointments to service of Pakistan and conditions of service. 
- Court said that he was not a a civil servant, we decide how to treat our employees. 
 

Mehram Ali Case 

- Anti Terrorism Act (Constitutional or Unconstitutional) 
- Investigation 
- Trespass 
- Seizure 
- S.35 of ATA - government to appoint judges 
- S.14 - Tenure of judges of special judges 
- Article 175 - appointment of judges 
- 203 says that the High Court has the power to superintend subordinate judges.  
- HC was saying that the government handle the appointment of the courts. 
- Court said that the ATA is suobrdinate to the High Court.   
 
 
 
 

Session 5 
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 

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

o Whether the right has been violated and the laws of the country afford him a remedy 

o Whether the Supreme Court can issue a mandamus. 

Rules 

o 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 s​ hall 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 

o 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. 

o Withholding the letter was a violation of that right. 

o 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. 

o 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. 

o 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. 

o If two laws conflict with each other, the court must see whether one is superior to the other. 

o 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. 

o 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. 

 
Bowsher v Synar 
- Budgetary politics.  
- Background 
- Social welfarist government → intervenes in social settings 
- Thatcher and Reagan - supply side economics. Cuts on state expenditure. 
- Rise of neo-liberal economics. 

Facts 
- The Comptroller General was an office created by the Budget and Accounting Act, appointed by 
the President with advice and consent of the Senate, from recommendations made by the Speaker 
of the House and the President pro tempore of the Senate. He serves a single fourteen-year term. 
Congress has complete control over the General’s tenure. 
- If he felt that there was an imbalance, he had the authority to recommend budget reallocations. 

Issue 
- Whether the Comptroller GEneral is controlled by Congress. 
- Whether the Comptroller General had been assigned executive powers in the Balanced Budget 
and Emergency Deficit Control Act of 1985. 

Rule 
- Balanced Budget and Emergency Deficit Control Act 1985 

Application  
- The power of removal of the Comptroller General was vested in the Congress. Thus, it was held 
that the CG should not be entrusted with executive powers.  
- Since the office was primarily of an executive nature, Congress itself cannot retain the right to 
control or remove. Congress cannot execute laws i.e. it cannot itself have the power to remove. 
- Dissent 
- The Court should have found the original statute unconstitutional.  
 

Buckley v Valeo 
- Federal Election Campaign Act 1971 
- Established Federal Election Commission. Wide range of rulemaking and law enforcement 
procedures. 
- Imposed limit on expenditure of candidate’s campaign.   
- Curtailment of individual contributions to a campaign was held valid. Curtailment of a candidate’s 
own expenditure on their own campaign was held invalid. 
- Legislature can legislate rules without violating First Amendment 
- Freedom of association and freedom of expression. 
 - The provisions of the Act which vested in the Commission primary responsibilities for conducting 
civil litigation in the courts of United States for vindicating public rights violated Article II, 
Section:2, cl. 2, of the Constitution. Those administrative functions may only be performed by 
persons who are Officers of the United States 

Bharti case 
- Power of the Parliament to take away certain lands. 
- Government passed an Act to take away certain lands in Kerala.  
- Religious sect leader sued under the freedom of religion. 
- 1951 - Land reforms and Communist Party rule in Kerala.  
- Relevant rules 
- Golethnath case 
- Privy Purses 
- Bank Nationalisation 
- Held that the Parliament cannot abrogate the Constitution, can only amend. 
- Implicit limitations on the power of Parliament.  
- 1975 - emergency invoked by Indira Gandhi.  
 
- Supreme Court and High Court create an ideology. Law provides legitimacy to the system. 
 

Session 6 
Bribery Commission case 
- S.41 Bribery Commission Act - amended, appointment mechanism of members 
- Against constitutional safeguards.  
- NRO case - judiciary wanted to invoke criminal investigation.  
- Judiciary has encroached upon legislature. Various institutions, e.g. NAB, FIA, were 
subordinate to the judiciary.  
 
 

Johnson v Zerbst (Group 7) 

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. 

o Waiver of counsel must be done intelligently and competently. 

o 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. 

o 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 

o Reed – concurred 

o 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. 

Session 9 
Jibendra Kishore case (1957) 
- Against article 5 (equality before law), article 18 (freedom of religion), due process and principles of 
policy of 1953 constitution.  
- East Bengal State Acquisition and Tenancy Act 1950 - allowed the Govt to take land from rent 
receivers.  
- Land reforms recommended in 1949.  
- Does article 18 allow the government to create a uniform law without offending rent receivers? 
- Discriminatory against rent receivers and waqf holders. Against religious freedom.  
- Respondents - did not violate article 5. Was not proven that their actions were actually 
discriminatory. Not applied evenly.  
-   
 

Benazir Bhutto cases 

- Constitutional petition. BB’s party could not participate in the 1988 elections because they had not 
registered with the Election Commission.  
- Amendments in the Political Parties Act 1962. Made it mandatory to register 1 month before 
elections or after formation.  
- Article 199 
- Scope of fundamental rights that can be enforced in 184(3). Purposive approach - interpret 
expansively. 
- Article 3 (end to exploitation), 37 (social justice), 38 (basic necessity), 
- Locus standi would depend on a case-to-case basis.  
 - Before 1988, only the aggrieved party could come to fight their case. Did not apply in public 
interest in litigation.  
- Section 3a and 3b demanding registration were void as it inhibited the ability to continue a political 
party.  
 
 
- S.21 of Representation of People’s Act 1976. Allocation of symbols on individual candidate basis, 
randomly.  
- Void against article 117(2) that gives right to political parties to freely contest elections. 
- Symbols are not a part of enshrined fundamental rights.  
- People are illiterate so the symbol is essential to their political decision making.  
- Granted in favour of Bhutto.  
 

Jashua case 
- Positive v negative rights.  
- Is the state bound to protect you from every harm possible?  
- Jashua a victim of child abuse. Suffered brain damage. 
- Was given to the child protection agency. Mother sued the agency staitng that these government 
depts could not provide the adequate protection of life, liberty and property. 
- 14th amendment - right to life. What does the state have to do to provide adequate protection?  
- State agency’s failures to protect did not breach due process clause. Does not protect private 
violence. 
- Harm did not occur in state’s custody. 

Shehla Zia vs Federation of Pakistan 

· Rules 

o 9 – Right to life 

o 184(3) – original jurisdiction of Supreme Court, public importance (case affecting public at large) and 
enforcement of fundamental rights. 

· Facts 

o WAPDA constructed power grid in residential area on green belt, residents filed petition citing potential 
violation of right to life. Electromagnetic fields tend to cause illnesses. 
o Public importance case – grid stations found all across the country, affecting a large number of people. 
Significance of case will also factor public importance. 

· Respondents 

o No clear scientific proof of detrimental effects 

o Public needs 

o Rule of precautionary policy & prudence 

§ If uncertain or inconclusive, cannot decide either way. Cannot prove causation. 

§ Err on the side of caution e.g. sufficient distance between grids and residents. 

· Judgement 

o Let the grid station stand, while allowing NESPAK to continue to assess the impact of the grid and 
whether they should be removed or relocated. 

o Can opt for any remedy that falls within the legality of the Constitution. 

 
 
 

Session 10 
Ghulam Jilani case (1967) 
- After 1960 war, security concerns in the country. 
- Activities and speeches. Proposed radical changes to the Constitution  
- Police Superintendent arrested them, they felt that they had no authority.  
- Contention regarding reasonable grounds of arrest. 
- Intention of activities not important, but rather the effect of those activities.  
- Article 143 - federal government can delegate powers to provincial governments.  
- Detention of Nasrullah illegal, detention of the other two were upheld.  
- Grounds need to be objective.  
 

Abdul Aziz case 

- Preventive detention. 
 - Punjab Safety Act 1949. Amended by West Pakistan Preventive Detention (Amendment) 
Ordinance. 
- S.3 of Punjab Safety Act violating Article 7(4) 
- Review Board to be established to determine whether detainee should be produced in 
front of magistrate. 
- Not of organic nature. Does not authorise the making of law. Do not need law to substantiate the 
article. 
 

Manzoor Elahi 
- Challenging detention of brother under Article 184(3), habeas corpus petition. 
- Post 1958 coup, in 1961, President restored High Court’s writ jurisdiction in tribal areas.  
- Emergency provisions.  
- Restoration of writ jurisdiction in tribal areas. 
- Whether the writ jurisdiction still applied in the new constitutions.  
- Article 2 of Constitution - emergency. Even in emergency, cannot make laws that are against 
fundamental rights.  
- No discontinuity.  
 

Roshan Bijiya 
- Turning point case - wanted fundamental rights in 1962 constitution. Writ jurisdiction in article 
98.  
- Arrested in 1974. Preventive detention.  
- S. 17 and 41 of East Pakistan Public Safety Ordinance 1958.  
- Suspicion of having done one or more prejudicial act. 
- Arresting officer should justify the arrest just that it could justify the judicial conscience.  
 

Atwar case 
- Whether the 4th amendment forbids the warrant of arrest for a minor warrantless criminal offence 
such as a misdemeanour of wearing one’s seatbelt.  
- Child was not wearing a seatbelt.  
- Standard of probable cause applies to all arrest.  
- Warrantless arrest - only for a breach of peace situation.  
 
Session 11 
Miranda v Arizona 
- Miranda arrested for rape and kidnapping by the Phoenix Police dept for the rape charge of an 18 
year old. 
- Not advised to the right to remain silent, nor was he told that his statements in interrogation would 
be used against him. Right to legal counsel not provided to him before trial.  
- Confession not voluntarily given.  
- 5th amendment and 6th amendment 
- Suspect must be made aware of his rights.  
- Miranda rights.  
 
Rhode Island v Innis 
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 expresses their 
concerns for the safety of the public?​ N
​ o. 
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. 

Thompson Case 
- Accused of kidnapping. 
- Did not sign acknowledgment that he was informed of his Miranda rights. Right under 5th 
amendment ot be released. 
- Two issues at Supreme Court 
- Did the appellate court determine Miranda rights correctly? 
- Was counsel effective? 
- Thompson voluntarily had a conversation with the police. This was not a violation of Miranda 
rights - right to be silence.  

Dred Scott case 

- Dred Scott - a former slave, resided in Illinois. Came back to a slave state. 
- Can a former slave become a member of the political community by gaining citizenship? 
- Cannot file for a case in federal court because they cannot become US citizens.  

Muhammad Ayub 

- SGO of WAPDA. Tried for corruption. Acquitted.  

- Double jeopardy.  
- What does the word ‘offence’ mean?  
- Criminal infringement and private rights are separate. 
- Article 13 applies to criminal law, not private rights. 

Ash v Swenson 
 - Robbery. Stole car. Tried, acquitted.  
- Found guilty. 
- Collateral estoppel - in some cases can be tried twice. 
- Double jeopardy is only possible once the final judgment is given.  

Ball v US 

- 3 people tried for murder and indicted. Went for appeal, one was acquitted. Appellate court asked 
for a retrial.  
- One guy was acquitted first, but then charged in retrial. 
- Double jeopardy arguments  
- Court said that there was insufficient material in the first instance. 

Alamdar Hussain Shah case 

- In police custody, was tortured by police.  

- Special Military courts requested for. By then martial law was lifted. 
- Went to magistrates court. Dismissed for lack of evidence. 
- Sessions judge said that trial was not done properly, dismissed. 
- High Court said the same. Writ petition in Supreme Court. 
- In martial law, fundamental rights are not applicable. If FR were valid, prosecution should e 
defined. 
- No court gave a proper conclusion. No violation of double jeopardy.  

Session 12 
Wajid Shamas-ul-Hassan v. Federation ... (PLD 1997 
Lahore 617) 
·​ ​ 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. 

Session 13 

H
​ assan and Chaush v Bulgaria Case 

. The applicants complained under Articles 9 (freedom of religion) and 11 (freedom of assembly 
and association) of the European Convention on Human Rights that there had been an unlawful 
and arbitrary interference with their religious liberties and the right of the believers and the 
religious community to govern their own affairs and to choose their leadership. They also raised 
complaints under Article 6 (right to a fair trial), and Article 13 (right to an effective remedy). 

. ​alleged enforced replacement of the leadership of the Muslim religious community in Bulgaria and the 
ensuing administrative and judicial proceedings. 

. H
​ asan 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 

.A​ rticle 9​(freedom of thought, conscience and religion) a​ nd of Article 13 ​ (right to an effective 
remedy) of the European Convention on Human Rights and that there had been n ​ o violation of 
Article 6​(right to a fair trial). T
​ he 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  

.T
​ he Court held, therefore, that participation in the life of the community was a manifestation of 
one’s religion, protected by Article 9. 

  
.  The  Court  further  found  that  where  the  organisation  of  the  religious  community  was  at  issue, 
Article  9  should  be  interpreted  in  the  light  of  Article  11  of  the  Convention  which  safeguards 
associative  life  against  unjustified  State  interference.  Seen  in  this perspective, the believer’s right to 
freedom  of  religion  encompassed  the  expectation  that  the  community  would  be  allowed  to 
function  peacefully  free  from  arbitrary  State  intervention.  Indeed,  the  autonomous  existence  of 
religious  communities  was  indispensable  for  pluralism  in  a  democratic  society  and  was  thus  an 
issue at the very heart of the protection afforded by Article 9. 
 
.  The  Court  considered  that  facts  demonstrating  a  failure  by  the  authorities  to  remain  neutral  in 
the  exercise  of  their  powers  in  respect  of administrative registration of religious communities must 
lead  to  the  conclusion  that  the  State  had  interfered  with  the  believers’  freedom  to  manifest  their 
religion  within  the  meaning  of  Article  9.  It  found  that  State  action  favouring  one  leader  of  a 
divided  religious  community  or  undertaken  with  the  purpose  of  forcing  the  community  to  come 
together  under  a  single  leadership  against  its  own  wishes  would  constitute  an  interference  with 
freedom of religion. (violation of art 9) 
.   
Noting that Mr Hasan was the leader of the faction of the Muslim organisation which was replaced 
through  the  State  decisions  complained  of,  the  Court  examined  whether  or not effective remedies 
had existed for him in his capacity as religious leader. 
  
The  Court  observed  that  the  Supreme  Court  had  refused to examine the substance of Mr Hasan’s 
appeal,  considering  that  the  Government  enjoyed  full  discretion  whether  or  not  to  register  the 
statute and leadership of a religious denomination.( violation of article 13) 
 
. no violation of article 6, 11 and 41 
. court decided in favour of hasan and chaush 

Session 13 
Abdul Hameed case 
- S.144 of CrPC → preventing freedom of association. 
- Prohibition of assembly in cantonment is not violative of the constitution because not wanting 
disruption within the army/cantonment area.  
- Freedom of association 
 

Nawaz Sharif case 

- 1988 - Junejo Assembly 
- 1989 - Ghulam Ishaq Khan.  
- Challenged the decision of GI Khan to dissolve the National Assembly in the Supreme Court.  
Benazir Bhutto case 

Moudoodi case 
 
Civil Aviation Authority case 
- Orders by Ajmal Mian to ban trade unions are violative of Article 17.  
- Is article 17 giving the right to strike also? No. 
 
 

East and West Steamship case 

● The people controlling the ships had a lot of legislative power, i.e. fleet control, licencing, etc. 
● Control of Shipping Act 1947  
● Article 11 and 12 - freedom of trade.  
● Use of delegated power by then was violative of article 12.  
 
 

Mehtab  
- S. 122 of Punjab Municipal Act. Issue notices to people who practice prosititution to vacate their 
premises.  
- Article 11 - lawful business.  
- No particular law prohibits prostitution. Contrary to public morality and decency. 
- Morality and decency are as fundamental as fundamental rights.  
 

Pakistan Company Limited case 

- Imdadi schemes. Pooling money by many people and spread among members.  
- Considered a scam 
- Undesirable Companies Act created. 
- Violative of Article 5, 10 and 12. 
- Art 10 - the right to form an association restricted based on morality and public order.  
- Art 5 - only penalises companies within one province. Discriminatory on provincial lines. Court 
held this argument invalid.  
- Art 12 - prevents the running of businesses, and prevents from running on other businesses. Lawful 
restrictions - theft, dacoity etc.  
New York Times v Sullivan 
- Article 19 - freedom of expression.  
 
 
 
 
 

Session 20 
 

Al Samrez Enterprises case (R U MINE?) 

1986 SCMR 1917 
 
● The federal govt (R) had issued a notification on 8th June 1972, in exercise of the powers 
conferred by S 19 of the Customs Act 1969, exempting certain items of machinery or articles for 
use with machinery or as component parts or spare parts of the machinery.  
● Exemption form Sales Tax already stood granted.  
● Appellants (Al Samraz Enterprise) on the faith of this notification purchased 100 metric tons of 
copper wires on 3rd June 1977 from Messrs Cloth and Company Ltd of Japan.  
● A letter of credit was also opened by HBL as payment of the goods on 15th June 1977. (They had 
been instructed to do so on the 8th) 
● Res 1 issued a notification on 11th June to amend the earlier one: ceiling for customs duty was 
raised to 25% from 20% and condition was imposed that the exemption would only be available to 
good imported against industrial license.  
● So when the goods arrived in September, Customs wanted to clear the goods on the new 
notification. 
● Court Held:​The subsequent notification in this case was in the exercise of a statutory duty. 
Hence, according to the rules of interpretation, an enactment which prejudicially affected vested 
rights or the legality of the past transactions, or impared contracts cannot be given retrospective 
operation.  
● Retrospective operation cannot be given to executive orders so as to destroy contractual obligations 
and rights already accrued.  
● Principles: 
○ New law should not be merely that a court’s decision is not binding on authorities. 
○ Statutes should fundamentally be altered.  
 
 
Jackson v Her Majesty 
● Hunting Act prohibited hunting of foxes with dogs. Parliament Act 1911 and 1949 labelled as 
problematic. 
● 1911 act sought to limit the powers of the House of lords. Cannot hold a bill for more than 2 years.  
● Tried to restrict the Bill’s passing. 3 readings allowed by the HoL, upto 3 years. Amended by 1949 
Act - restricted readings to 2, time to only 1 year. 
● HoL traditionally conservative.  
 
Shamim ur Rehman (1980) 
- Petition brought to challenge martial law regime.  
- 1972 - Rehmani Fauji Sugar Mill dissolved, shares given to Fauji Foundation. Part of 
nationalisation program. Interim Constitution 1972, gave validation to all ordinances passed.  
- Regulations/Order made in bad faith 
- Courts can validate legislative acts.  
- Regulations can be challenged on grounds of mala fide. Karachi High Court decided so, but 
Supreme Court reversed, despite the fact that only one judge provided a judgment.  
 

Liaquat Hussain case (1999) 

- Ordinance established military courts as a provisional measure to counter terrorism.  
- Ordinance unconstitutional as it derogates fundamental rights.  
 

Mehram Ali case 

- Convicted through anti-terrorist courts. Appealed to Lahore High Court, who upheld the 
conviction. Appealed to Supreme Court.  
- Arrest and detention article violated.  
 

Usif Patel case  

- Sindh Control of Goondas Act. Confined in prisons. 
- Habeas corpus challenged.  
- Assent of Governor General not obtained.  
- Cannot be validated under Government of India Act 1947.  
- Gov Gen dissolved assembly. Gov Gen not given unlimited powers to pass ordinance. Federal court 
stopped Gov Gen from legislating on constitutional matters.  
 
Privi Dusadth case 
- Appeals. Special Criminal Courts (Repeal) Ordinance 1937 repealed. 
- Legislature had power to validate all the laws that it could make. This was a judicial power.  

Atika Begum case 

- United Provines collecting revenues, functioning under a particular Act. Argued that this was ultra 
vires. 
- UP assembly validated another act. Judiciary had power to interpret the act they validated.  
- 1938 act invalidated the act under which they collected those revenues.   
- Judiciary still has power to scrutinise act. 
 

Molasses company 
- Guidelines given to pass valid legislation are valid under judicial power.  
 

Illahi Cotton Mills case 

- Power of legislature to impose tax. Amendments to Income Tax Ordinance. 
- Early 1990s → market economy.  
- Legislative power given by Federal Legislative List.  
- Presumptive tax applied on turnover, not income.  
- Power is enjoined in Constitution. Court’s approach should be progressive.  
- Allowed to tax as long as purpose is not to destroy business. If you’re differentiating between 
people along a rational nexus, such will not be held to be discrimination.  
- Cannot tax under both turnover and income.  
- Tax power is independent of Constitution, but is limited by the Constitution. 

McCray v US 
- Congress taxed on margarine. Artificially coloured margarine taxed more than non-coloured.  
- Lost case in lower courts, appealed to higher courts.  
- The tax levied was constitutional within congress’ powers. Stopping it from taxing would hinder 
the legislative process.  

Gudoon Textiles v Wapda 

 
 
All Pakistan Newspaper Society 
- 7th wage board given in 2001. Newspapers challenged this in Sindh High Court. Did not want to 
give wages as prescribed by the wage board. 
- S.9 Newspaper Employees Act  
- Violating Constitution 
- Whether the composition of the wage board was judicial, quasi-judicial, administrative or legislative 
activity.  
- Chairman is the delegatee of the federal government. Held this to be a legislative body. Whatever is 
done under this delegated legislation is valid.  
 

M. Ismail case 
- Tax v Fees - depends on different circumstances. Supreme Court.  
- West Punjab act, Punjab Cotton Control Act. - Government has power to charge fees of cotton 
factories to cover the costs of the workers. Charged on owners. 
- Tax, not fees. Fee is for the services. The fact that the factories are benefitting from extra yield. 
Government cannot impose extra tax.  
- Provincial government does not have power to charge fees, only federal government. Authority 
given to control board.  
- Cotton Control Board - power delegated is constitutionally delegated. Executive has power of 
rule-making.  
 

Hamilton v Al Fayed 
- Legislative privilege during proceedings.  
- Hamilton discussed proceedings with Al Fayed. Al Fayed paid Hamilton for lobbying in the 
proceedings. Al Fayed discussed proceedings in interviews.  
- All debate in the assembly was privileged, and he used it in an interview.  
- H waived legislator privilege in libel proceedings.  
- Waiver is allowed for parliamentary privilege.  
 

US v Johnson 
- Article 1, section 6, US Constitution - for any speech or debate in any house, the 
representatives/senators should not be questioned in any other place. 
- Respondent = former congressman. Convicted on conspiring against the US.  
- Article 1 to protect legislators from being prosecuted.  
- History of legislative privilege. 
- Tudors and Stuarts - monarchs had a lot of control over the legislative body.  
 - Privilege to prevent intimidation of the legislators.  
- Prosecution involved conspiracy, not directly related to parliamentary speech.  
- Can be retried for conflict of interest.  
 

Kilbourn v Thompson 
- Congressman, Kilbourn, involved in real estate business. Congress held inquiry, was imprisoned for 
40 days. Thompson was in charge of his custody. 
- Congress does not have power to punish someone in contempt of court.  
- UK has power to hold inquiry and punish. US can hold inquiry, do not have power to 
punish. 
- Court held that Congress is exceeding power by inquiring into private matters.  
 

Pandit MSM Sharma v Shri Shri Krishna Sinha and others 

(ours) 
- Petitioner, editor of Searchlight newspaper of Patna, called upon by Patna Legislative Assembly as 
he had published an entire speech delivered by a member, parts of which were directed to be 
expunged. 
- Petitioner contended it to violate his fundamental right to freedom of speech under article 19(1)(a) 
and protection of personal liberty under article 21. 
- Respondents claimed that proceedings in House as those in the British House of Commons were 
not meant to be published, let alone parts that had been directed to be expunged.  
- Conflict between freedom of speech and parliamentary privilege.  
 

Reference case 
- Speaker was orderd for imprisonment. No counsel on his behalf. Court awarded surety bonds and 
acquitted him. 
- Brought forth again. 
- Conflict between judiciary and legislator.  
- Whether the assembly is the sole power to issue contempt order and punish. 
- Privileges only meant for the smooth functioning of the legislature.  
- Privileges subject to fundamental rights. Not related to acts outside of the legislature.  
- Conduct of judges can be discussed in the house.  
- Article 66 - freedom of speech inside Parliament. Article 68 - restrictions as to judges of Supreme 
Court or High Court.  
- Article 204 - contempt of court.  
 
 
 
Abdul Hafeez Pirzada 
- Speeches in legislature held to be in contempt of court. 
- Privilege of legislature - restricted about conduct of judges. (Article 66) 
- Qualified privilege - court has the power to challenge such speeches if they are in contempt of 
court.  
- Article 204 - contempt of court. Court will only entertain such petitions if there is a compelling 
reason.  
 

Watkins v United States 

- Watkins was a Labour Union official. At a time when communism was followed in the US.  
- House Committee of Un-American Activities. Convicted Watkins. Committee going beyond its 
power as given under Congress. 
- 3 powers of legislative 
- 1) investigate government misconduct 
- 2) whether current laws are working 
- 3) determine if the US needs new laws. 
 

Sweezy v New Hampshire 

- Attorney General had unlimited power to investigate subversive activities. Professor Sweezy was 
investigated, but he did not tell the names of people in the Progressive Party. 
- AG filed petition in District Court. Court allowed petition but Professor did not give information.  
- Appealed in New Hampshire SC, affirmed conviction. Appeal in federal Supreme Court. 
 

Shahid Nabi 
- Article 63 - disqualification of member of NA.  
- Elections of Mr. Dar went to appeal.  
- Judiciary does not legislate, but looks at purpose of the law.  
- Holding an office of profit. 2 years had not lapsed since their last office.  
- 2 years had lapsed.  

Pir Sabir Shah 

- Speaker and Deputy Speaker of NWFP assembly 
- Political Parties Act - if an elected member defects from his party, can be disqualified. 
- N-League formed a coalition.  
 - Who has the power to disqualify? 
- Election Commission stated that this petition to disqualify is violative of Article 63(2). Decided 
against the Speaker (part of Pir Sabir Shah’s party).  
- Appealed to Supreme Court. S.8(b) Political Parties Act violative of Constitution. Final appeal 
should be taken to Chief Election Commissioner.  
 
- Aftab Shaban Mirani case 
- Speaker will send disqualification petition to Election Commission. Chief Election 
Commissioner will be the final appeal. 
 

Gilani PM case 
-Yusuf Raza Gilani’s disqualification via contempt of court.  
-Court convicted him. The court wrote a letter to the speaker for action under article 63(2). 
Paragraphs a, g, h of sub-clause 1 are disqualification by court.   
- Speaker’s job is administrative, not appellate authority. Cannot remit that conviction.  
 
Mohammad Azhar Siddique case (2012) 
 
 
 
 

Executive Powers 
Shamsher Singh case 
- 2 judges terminated by Governor of Punjab. Without any grounds. 
- Were on probation. Procedure to remove during probation not followed. Does Governor have 
discretion? 
- Constitution vested that power in him but also provided the procedure. Must have come to the 
decision with the advice of his cabinet.  
- Subordinate judiciary should have asked High Courts about probation, removal procedures etc.  

Ram Jawaya Kapur 

- Power of exectuvei to enter into business. 
- Printing press business of petitioners, published textbooks and distributed in Government Schools 
- 1905-1950 → procedure for textbooks: Punjab Education Department would decide whether 
certain books are up to par. 
- 1951 - 1955 → nationalisation of textbooks. 6 publishers went out of business, came to the court as 
a violation of freedom of business. 
- Who made this decision? PM? CM? Cabinet? 
 - Right to carry out business (art.19) was being infringed. Restrictions should be done via valid 
legislative enactment.  
- Right does not mean that only their textbooks can be published.  
- Executive has some law-making power insofar as the legislature has validated that power via an act.  
 

The Jurist Foundation v Federation pakistan 

- General Bajwa’s extension has been challenged. 
- Military-judicial relations.  
- Who is the federal government? 
- Petitioner = ex parte. Public interest litigation = the aggrieved party does not need to have a locus 
standi, due to judicial activism.  
- Petitioner applied to withdraw, but the court did not allow the case to be withdrawn. Suo moto 
action.  
- How was General Bajwa appointed? 
- Letter from Ministry of Defence requesting extension. No constitutional provisions 
mentioned as the basis for his extension. 
- The PM himself asked for extension, whereas under article 243, President must 
approve/appoint. Summary documents sent to President in a hurry, without approval of 
Cabinet.  
- The next day, summary moved for the approval of Cabinet. Cabinet approved, but did 
not go to PM or President again. 
- Army Regulation Rules, 255 - army officer can be suspended or terminated.  
- Extension must be done after retirement. No express provision for reappointment.  
- Purpose of extension = regional and security environment. Court dismissed, stated that this was the 
job of the army as an institution. This purpose = slippery slope.  
- Bajwa now the respondent.  
- Relevance = the role of the executive. Character and exercise of executive power.  
 

Nixon v US 
- Watergate scandal. Nixon accused of using FBI and CIA to steal classified documents in NBC. 
- Prosecutor said that certain conversations in the Oval Office were taped. Requested to hand over 
those tapes. 
- Nixon stated that those tapes were protected via executive privilege. Giving up those tapes = 
violation of trust 
- Right to protect information = power of President is not an absolute power. Only in military and 
diplomatic affairs.  
- Privilege is an obstruction of justice.  
 
Article 6, Qanun-e-Shahadat Order → HoD can write a letter to Judicial office to request privileged 
information, as a matter of public importance.  
Brigadier Imtiaz case 
 

Mustafa Impex case 

● Imports and exports company of cellphones. Granted sales tax exemption from federal government 
but was withdrawn. 
● 2013 notification – tax notification to withdraw. Sales Tax Act. Additional Secretary of Revenue 
Division issued notification. 
● Tax cannot be imposed unless supported by legislature. 
● Neither Secretary, nor the ministers, nor the PM = federal government. 
● Federal Government = Cabinet. 
○ PM = part of Cabinet. 
● Article 98,99 – cannot delegate taxation powers to authorities. Executive cannot make laws 
regarding taxation. 

Bhagat Singh case 

- Early 1930s 
- Lahore Conspiracy case  
- Governor General can pass an ordinance under Government of India Act through emergency 
powers. 
- Set up a tribunal under emergency powers that would abrogate rights under normal trials. 
- Argued that court setup was ultra vires. 
- Case went to Privy Council.  
 

Milligan case 
- Can the executive ask the militia to suppress rebellions? 
- Military tribunals can only be used if no civil court is present.  
- Writ of habeas corpus.  
- President had no power to set up military tribunals where civil courts are present 
 
Liaquat Hussain case 
- Ordinance to set up military courts.  
- Aid of civil power = cannot be invoked. Final authority = judiciary.  
 
Sakina Bibi case (1992) 
- Presidential Amnesty Order 1988 - turn all death sentences to life imprisonment as they were given 
under martial law. 
- Article 2A - Objectives Resolution a substantive part of constitution. 
- Can commuting sentences apply to Hudood punishments? 
- Under article 2A, court is empowered to look into article 45.  
- Article 45 can be used in tazir cases, not hadd cases as the latter are divinely ordained.  
 

Hakim Ali Khan case 

- Article 2A does not control the Constitution. Not self-executing. 
- Justice Khosa pushing article 2A to empower judiciary.  
- Cannot check the repugnancy of article 45.  

Humphrey’s Executor v United States 

It is a U
​ nited States Supreme Court​ case decided during the Franklin Roosevelt presidency, regarding the powers 
of the President of the United States if he has power to remove certain executive officials of a quasi-legislative or 
quasi judicial administrative body created by Congress, for purely political reasons and without the consent of 
Congress. 
 
President C ​ alvin C
​ oolidg​e​ appointed W
​ illiam Humphrey​ as a member of the F ​ ederal Trade Commission​ (FTC). 
After Roosevelt took office in 1933, he became dissatisfied with Humphrey as he did not, in Roosevelt's view, 
support his ​New Deal​ policies vigorously enough.  
Roosevelt requested Humphrey to resign from the FTC, to which Humphrey did not yield. Roosevelt fired 
Humphrey. Nevertheless, Humphrey continued to come to work at the FTC even after he was formally fired.  
However, the F ​ ederal Trade Commission Act​ permitted the President to dismiss an FTC member only for 
"inefficiency, neglect of duty, or malfeasance in office." Roosevelt's decision to dismiss Humphrey was based 
solely on political differences rather than job performance or alleged acts of malfeasance. 
 
● The unanimous Court found that Humphrey's dismissal on policy grounds was unjustified. The 
Court reasoned that the Constitution had never given "illimitable power of removal" to the 
president. 
● The Court distinguished between executive officers and quasi-legislative or quasi-judicial officers. 
The latter may be removed only with procedures consistent with statutory conditions enacted by 
Congress; the former serve at the pleasure of the President and may be removed at his discretion. 
The Court ruled that the Federal Trade Commission was a quasi-legislative body because of other 
powers it had and so the President could not fire an FTC member solely for political reasons; thus, 
Humphrey's firing was improper. 
● Justice Sutherland dismissed the government's main line of defense in this case which relied heavily 
on the Court's decision in Myers v. United States (1926). In that case the Court upheld the 
president's right to remove officers who were "units of the executive department." The FTC was 
different, argued Sutherland, because it was a body created by Congress to perform quasi-legislative 
and judicial functions. The Myers precedent, therefore, did not apply in this situation.