MAULANA ABDUL HAQUE BALOCH AND OTHERS VERSUS GOVERNMENT OF BALOCHISTAN THROUGH SECRETARY INDUSTRIES AND MINERAL DEVELOPMENT AND OTHERS

(CIVIL PETITION NO.796 OF 2007 AND CMA NO.4560 & 4561 OF 2009 AND CMA NO.116 OF 2011 & AMA NO. 403 & 406 OF 2012)

The matter involved the legality of the Chagai Hills Exploration Joint Venture Agreement (CHEJVA) executed in the year 1993 between BHP Minerals International Exploration INC a foreign company and the Government of Balochistan for the purpose of conducting exploration and development of mineral deposits of gold and copper in the agreed Exploration Area, in District Chaghai of the Province of Balochistan Pakistan. The Balochistan Development Authority (BDA) was to provide administrative support, necessary consents, approvals, NOCs, security clearances etc and relaxation of certain Rules of the Balochistan Mining Concession Rules, 1970. BHP was to undertake the work and entire cost of the exploration and infrastructure etc. thereof. The respective Percentage Interests were 25% for BDA and 75% for BHP. The Joint Venture was granted ten Prospecting Licenses (PLs) in 1996 for an area of 1000 Sq. Km. BHP carried out reconnaissance and detailed work up to 1999 in these areas and reported large deposits of Copper, Gold etc. at Reko-Diq.

The Joint Venture thereafter surrendered 8-PL’s and retained Two PLs of Reko-Diq. After the new National Mineral Policy and the enactment of Balochistan Mineral Rules, 2002, a consolidated Exploration License No.EL-5 was granted to the Joint Venture for a defined area of Reko-Diq in 2002 for three years. On two renewals thereof, EL-5 was to remain valid upto 18th February, 2011. During the extended period of EL-5, ADDENDUM No.1 to the CHEJVA was signed between BDA/GOB and BHP, whereby inter alia, Government of Balochistan became a Joint Venture partner in CHEJVA with BDA as its Agent. ADDENDUM also permitted transfer or assignment of a party’s interests in CHEJVA wholly or partly. Whereon through intermediary corporate instrumentalities, share interest of BHP in CHEJVA was routed and re-routed via Mincor Resources N.L/Tethyan Copper Company Ltd., of Australia (TCC) per the OPTION AGREEMENT/ALLIANCE AGREEMENT. And finally under the NOVATION AGREEMENT OF 2006 JVA was renewed to substitute TCC for BHP as a full party with Deed of Waiver and Consent of GOB for such transfer. BHP was thus replaced by TCC in the Joint Venture which became TCC-BDA/GOB’ CHAGAI HILLS JOINT VENTURE.The respective Percentage Interests were restated for GOB (25%) and TCC (75%). Antofagasta of Chile and Barrick Gold Corporation of Canada; stated to be amongst the largest companies prospecting for gold and copper in the world, then stepped in and jointly purchased TCC’s entire 75% Percentage Interest in the Joint Venture. Antofagasta and Barrick Gold; on thus acquiring TCC, carried out the drilling and exploration programme at EL-5 area of Reko-Diq at a claimed expense of millions of US $, with no financial cost burden on GOB/BDA.

In 2006, C.P. No. 892 of 2006 was filed by Maulana Abdul Haq etc., in the Balochistan High Court challenging legality of CHEJVA, relaxation of 1970 Mining Rules by GOB and BHP’s lukewarm exploration activity. The Government of Balochistan denied illegality of CHEJVA and its alleged contrariness to public interest. This Constitutional Petition was dismissed by the High Court of Balochistan on 26-6-2007. The relaxation of 1970 Rules, acts of GOB/BDA and CHEJVA were held to be legal. Hence the instant Civil Petition was filed before the Supreme Court of Pakistan in its appellate jurisdiction.

During the pendency of the leave petition, a major development took place. Exploration work including drilling was completed by TCC within the stipulated period. Substantial discoveries of gold and copper etc. were made. The license period expired on 18th of February, 2011. TCC submitted to GOB Feasibility Study Report; a study to ascertain the commercial feasibility of the mining of the resource, treatment of ore obtained in mining operation, expected optimum return, life of the mine, mineable reserves and grade and the results of geological and geophysical investigations etc. When the Feasibility Study was under examination of GOB a former Advocate General namely Mr. Salahuddin Mengal offered to share the feasibility report with the Supreme Court.

During the course of proceedings the Supreme Court recalled its restraining order dated 3-2-2011 and directed the competent authority in the Government of Balochistan to proceed expeditiously to decide TCC’s application for the grant of mining lease transparently and fairly in accordance with the law and the rules. It was further directed that in so doing the Government of Balochistan shall not be influenced in any manner whatsoever by the pendency of the proceedings or by the orders therein passed by the Court. The application for grant of mining lease submitted by Tethyan Copper Company Pakistan (Pvt.) Ltd. (TCCP), incorporated in Pakistan, was dismissed by the Mines Committee constituted under the Balochistan Mining Rules, 2002 (hereinafter referred to as the BMR 2002) in its special meeting held on 14.11.2011 and the decision communicated to TCCP vide letter dated 15.11.2011. TCCP challenged the said decision by means of an administrative appeal before the Secretary, Department of Mines & Minerals, Government of Balochistan, as provided under the BMR 2002, which too was dismissed. Both these orders were not challenged by TCCP.

The Tethyan Copper Company (TCC), incorporated in Australia, invoked the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID) against the Government of Balochistan (GOB) seeking specific performance of CHEJVA and grant of mining lease. The claim of TCC was not registered by ICSID. Later, TCC filed a claim against the Government of Pakistan on the basis of the Pakistan-Australia Bilateral Investment Treaty of 1998, which is reportedly pending for adjudication. The claimant also moved an application for provisional measures to immediately grant a temporary restraint order pending disposition of the request. In the said application, it was requested to freeze the work of the GOB in 99 square kilometers including H-4 ‘Tanjeel’. Dr. Samar Mubarakmand also entered appearance as a witness before the Tribunal on 06.11.2012 and stated that the GOB was planning to work in H-4 area as early as possible. The ICSID Tribunal vide decision dated 14.12.2012 rejected the application of TCC for provisional measures and allowed the GOB and Dr. Samar Mubarakmand to carry out mining in H-4 ‘Tanjeel’ in Reko Diq. The plea of TCC regarding urgency and irreparable loss was also declined. However, the GOB was asked to keep the Tribunal informed of its specific plans and developments at the site. Simultaneously, TCC had also invoked the jurisdiction of the International Chamber of Commerce (ICC) primarily seeking specific performance of CHEJVA and grant of mining lease in the Reko Diq area of 99 kilometers comprising 14 deposits.

It is pertinent to mention here that TCCP on having accepted the order of rejection of application for grant of mining lease as well as the order of the appellate authority under the BMR 2002, instead of invoking the jurisdiction of the High Court under Article 199 of the Constitution for judicial review of both the orders, approached ICSID and ICC purportedly in light of the provision of Article 15 of CHEJVA executed between BHP and BDA. Before submitting the application for issuance of Prospecting Licences (PLs) under the Balochistan Mineral Concession Rules, 1970 (BMCR 1970), the counsel of BHP Mr. Martin Harris suggested relaxation of a number of rules, including the rule relating to persons by whom applications may be made. The said request by BHP’s counsel was forwarded by BDA to the GOB and ultimately notification dated 30.01.1994 was issued, whereby a number of  relaxations were granted including Grant of Exploration Areas, Area available for prospecting Licenses, Application for prospecting Licence, Satisfaction of conditions attaching to prospecting Licenses, Exclusive right,Other Minerals, Government rights pre-emption acquisition merger, and taking control in National emergency, Assignment, Application for Mining License ,Royalty, Penalties compensation and cancellation, Employment and training and Mining Lease.In the year 1996, BHP applied for 10 PLs, which were granted on 08.12.1996.  

A three member bench headed by the Honorable Chief Justice of Pakistan after extensively hearing the matter on various planes vide its short order observed that CHEJVA, which was originally executed between BHP and BDA appeared to suffer was suffering from certain legal deficiencies, therefore, Addendum No.1 to CHEJVA was executed on 04.03.2000, allegedly under the authorization of the then Governor of Balochistan, Justice (Retd) Amir-ul-Mulk Mengal. The Supreme Court noted that through the Addendum, drastic changes were made in CHEJVA, inasmuch as permission was granted for transfer or assignment of a party’s interests in the agreement wholly or partly. Further, the GOB was made a joint venture partner and the BDA represented itself as an agent of GOB through ratification of agency. Thus, there were serious question marks on the manner in which the then Governor of Balochistan granted authorization by executing an undated document, however, from certain documents it appeared that the same was executed on 24.12.1999. Although prior to this authorization, former Governor Syed Fazal Agha had not signed the document, which was placed before him for the purpose of executing authorization, prima facie, for the reason that before 12.10.1999, the GOB through the Chief Minister had decided to constitute a two-member committee to examine the said document. The Supreme Court observed that by means of the Addendum, in the name of ratification in terms of section 196 of the Contract Act, 1872, instead of supplementing CHEJVA, its entire complexion was changed.

It was further observed that on the basis of the Addendum, an ‘Option Agreement’ was also executed and in the garb of reliance on one of the clauses contained in CHEJVA, namely, Article 14 ‘Assignment’, Mincor option was created in favour of Mincor NL, a company incorporated in Western Australia, enabling it to enter into an Alliance Agreement under clause 3 of the Option Agreement. The Mincor Option gave the sole and exclusive right to Mincor or its nominee to enter into alliance with BHP to explore in the region. On 24.10.2000, TCC, as nominee of Mincor, exercised the Mincor Option and executed an Alliance Agreement on 19.04.2002. It may be mentioned that TCC was a company incorporated in Western Australia with its place of business situated at Perth. In 2006, Antofagasta, a Chilean company registered in the United Kingdom through its subsidiary Atacama Copper Pvt. Ltd., made an offer to buy the shares of TCC, which was accepted by the Board of TCC. As such, Antofagasta through Atacama acquired the total shares of TCC for AUD 220 million.

It was observed that TCC also purchased the claw back right of BHP for US$60 million. In September 2006, Barrick Gold of Canada purchased 50% shares of Atacama from Antofagasta through share-purchase agreement and thus acquired 50% ownership interest of TCC. Pursuant to the share-sale agreement, an interim shareholders agreement dated 22.09.2006 was executed between Barrick Gold and Antofagasta to govern their relationship vis-à-vis the management of TCC. TCC started its operations in Pakistan through its Branch Office registered with the Board of Investment. It also incorporated a local subsidiary in Pakistan called TCCP. In December, 2007, TCCP approached the Lahore High Court for amalgamation of TCC’s Branch Office in Pakistan and TCCP, incorporated in Pakistan, which had been functioning simultaneously until that time.

The Supreme Court recorded in its order that the Islamabad High Court, to which the case was transferred on its establishment, vide order dated 11.04.2008 approved the amalgamation of both the companies as per the scheme of arrangement. As such, licenses and properties held by Pakistan Branch of TCC stood transferred to TCCP. In the meanwhile, the BMR 2002 were enforced, and on 03.09.2002, TCCP applied for an Exploration Licence (EL) for copper, gold and associated minerals in an area of 973.75 sq. km. in Chagai District and was granted EL-5 vide letter dated 09.09.2002. EL-5 was renewed twice and remained valid upto 18.02.2011. In April 2006, BHP, TCC and GOB through its purported agent BDA, executed a Novation Agreement to CHEJVA, whereby the 75% interest of BHP in the agreement as well as in EL-5 was transferred to TCC. The Novation Agreement was purportedly made for the purpose of substituting CHEJVA, and the GOB was also made a party to the Joint Venture, which was not permissible under BMR 2002 as well as the Rules of Business of the Government of Balochistan, particularly Rule 7 and other rules. The GOB, in purported exercise of the powers vested in it under the BMR 2002, granted relaxations in violation of rule 98 as no reason was assigned for the relaxation of the relevant Rules.

The Supreme Court noted that in addition to these defects, after having invoked the jurisdiction of the original as well as the appellate authority under the BMR 2002, TCC had submitted to its forum/jurisdiction. Both these authorities had derived their powers and jurisdiction from the BMR 2002, which were framed under the Act of 1948. The findings so recorded were adversely operating against them and, for all intents and purposes, they had no claim of any nature whatsoever against the GOB or the Government of Pakistan. It was also noted that in the Constitution Petition filed before the High Court of Balochistan, the GOB had opposed the petition. However, when the matter came up before the Supreme Court in CPLA in 2007 and orders dated 03.02.2011 and 25.05.2011 were passed, wherein certain issues were noted, the GOB supported the stance of the petitioners, who also filed additional grounds in light of the changed circumstances.

The Supreme Court, besides being seized of CPLA was also seized of Constitution Petitions under Article 184(3) of the Constitution and miscellaneous applications filed therein. Accordingly, CPLA as well as Constitution Petitions under Article 184(3) of the Constitution were simultaneously held maintainable under the Constitution.
The three member bench of the Supreme Court headed by the incumbent Honourable Chief Justice of Pakistan for detailed reasons to be recorded later, converted CPLA into appeal and allowed the appeal as well as the Constitution Petitions under Article 184(3) of the Constitution with costs throughout whereas the Miscellaneous Applications were disposed of.

The Chagai Hills Exploration Joint Venture Agreement dated 23.07.1993 was held to have been executed contrary to the provisions of the Mineral Development Act, 1948, the Mining Concession Rules, 1970 framed thereunder, the Contract Act, 1872, the Transfer of Property Act, 1882, etc., and was declared to be illegal, void and non est. The Addendum No. 1 dated 04.03.2000, Option Agreement dated 28.04.2000, Alliance Agreement dated 03.04.2002 and Novation Agreement dated 01.04.2006, which were based upon, and emanated from, CHEJVA were also held to be illegal and void. The apex Court observed that all these instruments did not confer any right on BHP, MINCOR, TCC, TCCP, Antofagasta or Barrick Gold in respect of the matters covered therein. It was further held that EL-5 tantamount to exploration contrary to rules and regulations as the claim of TCCP was based on CHEJVA, which document itself was declared non est. 

Role of Judiciary in promoting National Security and Defense of Pakistan

The idea of an independent state emerged and traveled through history before coming into the present form. The feelings of protection and safety are one of the basic reasons for the need of an independent state anywhere in the world. This requirement compels the people to sacrifice even their lives to achieve such a place on earth, where they can live freely and feel safe and secure without any internal as well as external threat. The other reasons may include avoidance of social, cultural and religious persecution and welfare of a community etc.

There is no denying the fact that the existence and survival of any nation is directly related to the national security and defence of its geography. The sacrifices made in pursuance to the vision for an independent state become meaningless in absence of national security and defence of the country. Therefore, it is crucially important that the internal as well as external threats to the security and existence of any country must be dealt with promptly in order to safeguard the rights of the people.

When we talk of the security and defence of any state, the military aspect comes into our mind immediately, but it must be remembered that it is not the sole component of the national security and defence of any country. In modern times, the state has to work for the progress and prosperity of its citizens on the one hand and on the other hand the citizens are bound to be loyal and work for the betterment of their country to the best of their abilities. The idea of national security previously focused on military might has transformed in modern times. Today it encompassed many facets, which include non-military and economic security of any nation. Now, in order to protect national security we have to possess security in the economic, energy and environmental sectors. The conventional threats to the existence are also there, but the non-state threats e.g violence, narcotics, natural disasters are also included in this category. The external aggression includes the war and threats to the sovereignty. Such challenges are dealt with by the help of armed forces usually, but the role of other organs and institutions cannot be ignored. Particularly, the role of justice in society in protection and promotion of national security and defence of country is very important. Here it would be instructive to refer to history. During World War II when Sir Winston Churchill was asked whether Britain will win the war or not, he put a counter question to his interlocutor asking, is the judiciary in Britain operating independently and doing justice? The answer was yes. He said then we will win the war!

Justice is accorded cardinal importance the western world. Rather the concept of Justice has always been highly regarded in every society throughout the history in every part of the world and injustice anywhere is considered a threat to justice everywhere. In an Islamic society, it carries more importance, because in Islam, justice is not only considered a worldly affair rather it is a sacred duty. Allah Almighty has ordained in the holy Quran:

"O you who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest you swerve, and if you distort justice or decline to do justice, verily Allah is well-acquainted with all that you do." [Sûrah al-Nisâ’: 135]

Islam being a religion of peace provides complete code of life for every segment of the society. History of the world is filled with the tales of struggle to have an independent homeland. The struggle for Pakistan was a unique one as it was not just a struggle for a piece of land rather it was to get a place where the Muslims of the subcontinent could live and practice Islam freely. Quaid-e-Azam, Muhammad Ali Jinnah, in his address at Islamia College Peshawar, declared that:

"We do not demand Pakistan simply to have a piece of land but we want a Laboratory where we could experiment on Islamic principles."

The sacred struggle was full of sacrifices and ultimately, on 14^th of August, 1947, the dream for an independent state came true and Pakistan emerged on the map of world. Now being loyal Pakistani citizens, it is our responsibility to safeguard and protect the interests of this country. Under Article 2 of the Constitution, Islam has been declared as the state religion of Pakistan and to run the system of government, in this Islamic republic of Pakistan, guidelines have been provided by the Constitution of Pakistan, 1973. The Constitution of Pakistan is very comprehensive in providing guidelines to run the affairs of the State. On one side it assures the citizens their fundamental rights and on the other hand it establishes a mechanism for the protection of its existence.

We know that the importance of justice for the existence and security of any country is very crucial, therefore, Constitution has held the state responsible to ensure justice in the country. According to Article 37 (d) of the Constitution of Pakistan, 1973 it is for the State to ensure inexpensive and expeditious justice. For this purpose whole system of administration of justice has been established under Article 175 of the Constitution. Supreme Court being the apex court of the Country is the final arbiter of disputes. Besides the Supreme Court, and the Federal Shariat Court the Constitution has established High Courts in all the four provinces and one in the federal capital. The tribunals, special courts and other subordinates courts established under the law are apart from this.

Nowadays, countries achieve strength or weakness due to their economic and cultural prowess. Therefore, to ensure the national security of our country it is very much important that the internal fabric of society should be made so strong that the country turns into an unconquerable fortress against any internal as well as external aggression. When we turn particularly to our country, Pakistan, we observe that most of our resources including the armed forces are being utilized in combating the war against terrorism and to maintain the law and order situation within the country. Major portion of our financial resource is being spent on these activities. Little money remains with the government for the welfare and improvement work. We are also aware that to nurture the armed forces is not a child’s play. If the main part of our budget goes to the war against terrorism and for maintenance of the law and order situation in the country then little and insufficient amount would be available to cope with the military needs. It will have adverse affect on the national defence. In our country where there are already the issue of corruption and tax evasion the situation would be more worsen.

The role of judiciary in promoting the national security and defence of our country has not been discussed properly and taken into account generally. It is not to lessen the importance of other stakeholders but to bring into light the role which this organ of the state has played in promoting national security as well as defence of Pakistan.

The justice delivery system has to impart justice as per dictates of law and the Constitution. Although role of judiciary never varies in times of war or peace as it has to perform the function for which it has been established and that function is to deliver the justice. However, in times of war whether it is against any internal aggression like terrorism and maintenance of law and order situation or against any external aggression the need for imparting justice becomes more significant. The judiciary cannot deliver justice until and unless it operates independently. Constitution of Pakistan ensures its independence. The very preamble of our Constitution states that independence of the judiciary shall be fully secured. Ruling in the case of Government of Sindh Vs. Sharaf Faridi (PLD 1994 SC 105), further strengthened the independence of judiciary, wherein it was held that independence of judiciary also meant the elimination of financial control over judiciary by the executive.

The historic lawyers’ movement for the independence of judiciary has proved that the people of Pakistan desire a stable and impartial judiciary which can fully protect their rights and decide their issues according to the Constitution and the law. Judiciary is the only organ of State which has to protect the rights of the people when they knock at its doors against the aggressions of even the state functionaries. The number of writ petitions filed in the High Courts, which runs in thousands every year, gives a very gloomy picture of the institutions. Now the courts are heavily burdened with the work of protecting the citizens against the violations of their rights.  Furthermore, it is also very common that the deprived class and segment of any society becomes an easy prey to the terrorists. The foreign elements even engage the local agents to carry out their heinous designs and accomplish their evil objects. If the deprived locals are given proper opportunities to grow, prosper and participate in the mainstream, then the foreign terrorists might not be getting the sources and connections for the accomplishment of their nefarious designs.

The judiciary of Pakistan can combat the internal security issues. The need is to make the judiciary independent. The judiciary of Pakistan in its various judgments has exhibited this spirit. Constitution of Pakistan is the document which has clearly defined the role of all the institutions. Article 245 of the Constitution defines the role of the Armed Forces. It has been stated in this Article that the Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so. Besides taking part in the constructive activities the armed forces of Pakistan have to act in aid of civil power.

Supreme Court of Pakistan has played very important role in the protection of national security. The issues of terrorism and law and order have been given due attention. There is no doubt that the law and order situation plays a vital role in national security. Supreme Court in the case of law and order situation of Karachi had taken a suo motu notice and had, interalia, observed that the law and order condition prevailing in a country has a direct and significant bearing on the peace and pattern of economic development of that country. The existence of basic socio-economic framework and the continuation of economic growth without any hindrance or interruption depends upon substance of better law and order situation.[1]Trade activities are the backbone for the growth of economy of any nation. If a country is providing fair and equal economic opportunities to its people, prosperity is bound to happen. Feelings of deprivation create a tendency to commit crimes, which seriously challenge the national security.

Judiciary of Pakistan has always given special attention to such issues related to the improvement in the justice delivery system and since 2009, the National Judicial Policy has been implemented. It was agreed in the Policy that the priority would be given to the disposal of trade, commercial and investment cases. Such cases would be managed on fast track basis through establishment of designated courts and by constituting special benches by High Courts and the Supreme Court. Furthermore, it was also decided that the banking, tax, duty, levy and cess cases should also be decided within 6 months.

If the courts are deciding the cases on merit, rule of law and independence of judiciary are accorded due respect then the national security as well as the defence of the county becomes impregnable. If the better environment for the trade and commerce activities is provided and the commercial cases are given priority and justice is provided in time, then it will surely boost the international investment in the country. The investors from all over the world prefer to invest in a country which is safe and peaceful. But to attract the foreign investment we have to maintain the internal peace and make sure the law and order is appropriate. The judiciary is to be kept independent so that it decides the issuses and disputes with full confidence without any fear or favour. This impartiality will add to the prosperity of our country.

Supreme Court also held in the Karachi law and order case that there was need to depoliticize the police in the city. The matter of depoliticizing is not restricted to the police. It should be carried in all the civil establishment for strengthening democracy and internal security. Recently Supreme Court has laid down various principles regarding the affairs of civil service in the famous case of Ms Anita Turab (Const. Petition No. 23 of 2012) vide its judgment dated 12.11.2012. The judgment has started producing results and now no civil servant feels vulnerable in view of extraneous pressures. This Judgment has ensured that a safe and secure environment is provided government functionaries to carry out their duties without any let and hindrance.

The Courts are often held responsible for the release of culprits and it is usually said that the terrorists and other criminals are released by the Courts. It is pertinent to mention here that the Courts are bound to deliver the justice as per law of the land. If there is little or insufficient evidence to prove the guilt of any accused then how the Courts can punish the accused? There is need to improve the criminal justice delivery system in order to promote national security. The law in this regards requires improvement. Late Mr. Justice Sabihuddin Ahmed, (May his soul rest in peace), had rightly observed:

“….terrorism is a fast growing phenomenon and it is in the wider public interest that all civilized States should make laws and take appropriate measures within their Constitutional system to combat it.”[2]

The law regarding investigation, prosecution and evidence needs further improvement, and the crimes require to be more narrowly defined, so that the criminals should not escape from the strong arms of law. If at the stage of trial and investigation, any lacuna is left it results in the ultimate escape of the culprits. Legislature should look into the matter and make such laws which make the criminal justice delivery system more effective and efficient. It should also be made sure that no innocent be punished by the faulty or wrong investigation, because this creates the sense of insecurity and dissatisfaction among society at large. If any innocent is punished wrongly then it promotes the tendency towards commission of crime. If strong person escapes from clutches of law then weaker segment of the society tries to become strong and richer in an undesirable manner. They adopt wrong ways, which further threatens the national security.

It is also very important to discuss here that the Constitution has provided for the roles, functions and power of every institution. All the organs and institutions including the armed forces and the judiciary have to work within their prescribed limits. The judiciary cannot act like an armed forces and the forces are not empowered to exercise the powers of the judiciary. The Courts never allow the parallel judicial system to be run by the armed forces. In the famous case of Liaquat Hussain Vs. Federation of Pakistan[3] the courts established pursuant to the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998 were declared to be unconstitutional.

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Everybody is aware of the fact the on-going political jostling, threats to national security and deteriorated law and order situation, we have only one comfort that as a nation we have consensus on fundamental issues. We have one common and fundamental law with us and that is our Constitution which enjoys the unprecedented legitimacy. We can easily chart out visible future course of action and to have a system of good governance, and in order to promote equality, tolerance liberty, socio-economic and political justice in the society.

No organ and institution in any society can work without co-operation of the others. In order to achieve the goals and objects as set out by the Constitution we have to work hand in hand with each other. Every organ and institution is established in a society for a particular purpose. If all the institutions are working within the boundaries of law then the wheels of prosperity would surely lead us to the ideal and peaceful life envisaged by the Constitution. Being patriot we should work for making our nation stronger and better than ever. We should not focus on what we have received. Rather, we should see what we have given and contributed for our motherland. Waving the flag is not the only symbol of patriotism; rather it is the active practical step which counts. James Bryce had rightly said:

“Patriotism consists not in waving the flag, but in striving that our country shall be righteous as well as strong.”

The judiciary of our country is determined to play its role within the contours prescribed by law and the Constitution.

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[1] PLD 2011 SC 997 (1020)

[2] 2003 CLD 1797 at 1815

[3] PLD 1999 SC 504

SUO MOTU POWER OF HIGH COURT UNDER ARTICLE 199 OF THE CONSTITUTION OF PAKISTAN 1973

The Indian Constitution of 1949 provides ample jurisdiction with the High Courts to take suo motu notice of infarctions of fundamental rights under Article 226. Further, Indian High Courts have been given writ jurisdiction to which the Supreme Court of India has expounded as a very wide power. Like the Indian Supreme Court, the High Courts of India have also powers to take suo motu actions under Article 226.

Therefore, a high court can take action under article 226 of the Constitution if a newspaper clipping brings to the notice of a judge the infarction of fundamental right. However, such action cannot be taken by the learned judge himself. The proper procedure has been provided by the Supreme Court in a number of judgments to the effect that in such a case, it is appropriate for a judge of high court to refer the matter to the chief justice of the High Court and it will be the Chief Justice who will decide as to which Judge or a bench of Judges can hear said matter. This also helps in avoiding forum choice by the litigants or for that matter by the newspaper printers/publishers.

On the other hand, the Supreme Court of India has also provided guidelines through different judgments that the High Courts should use restraint in acting upon the newspaper reports as these are sometimes created with mala fide intention or based on wrong facts.

DISCUSSION:

Clause (1) of Article 226 of the Constitution of India 1950 reads as under:

          226. Power of High Courts to issue certain writs.––(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of Habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

V. N. Shukla, in his Constitution of India,[1] has described these powers in the following words:      

          The High Courts have very wide powers under Article 226. These powers confer a discretion of a most extensive nature on the High Courts. But the very vastness of the powers conferred on the High Court imposes on it the responsibility to use them with circumspection. Accordingly, the High Court will necessarily exercise the jurisdiction in accordance with judicial considerations and well-established principles.

The above quoted article 226 from the Indian Constitution is different from the present Constitution of Pakistan 1973 because the Indian constitution does not prescribe as to who can move the Court for enforcement of violation of Fundamental Rights. The Article 226 of Indian Constitution seems at par with Article 170 of the erstwhile Constitution of Pakistan 1956. Under the Pakistani jurisprudence, it has been held in The Tariq Transport Company v. Sargodha Bhera Bus Service and others PLD 1958 SC (Pak.) 437, (Mr. Justice Munir spoke for the Court):

                I shall presently deal with the issue raised and fully argued whether a Regional Transport Authority is a quasi judicial body but assuming that it is, it 'does not follow that under the Constitution the High Court can exercise a general revisional or supervisory jurisdiction over such bodies because, as already pointed out, a petitioner for a writ or a direction or order under Article 170 of the Constitution has first to show his standing. A High Court, therefore, is not competent merely on information or of its own knowledge to commence certiorari proceedings or other proceedings of a similar nature under that constitutional provision.

The above observation was made by the Supreme Court of Pakistan under Article 170 of the erstwhile 1956 Constitution, a parallel provision of Article 226 of Indian Constitution. The strict construction of locus standi was the norm here. This was again held in the State of Pakistan and another v. Mehrajuddin, PLD 1959 SC (Pak.) 147. After the abrogation of 1956 Constitution, the 1962 and 1973 Constitutions have made it clear through Articles 98 and 199 respectively that such writ jurisdiction by the high courts can only be used when the Court is moved either by a person or by an aggrieved party. The judgments presently holding the field in Pakistan on Article 199 of Constitution of Pakistan 1973 are quite clear on this point.[2] As the Indian law is in the same wording as were applicable in Pakistan under 1956 Constitution, thus, we have to see how the Indian Courts have interpreted Article 226 of Indian Constitution.

We will now focus on Indian interpretation of Article 226 of the Indian Constitution by the Indian Courts. Thus, in a recently decided case by a learned Division Bench of the Madras High Court in Women Lawyers' Association vs Government Of Tamil Nadu,[3] it has been held:

            334. Exercise of jurisdiction under Article 226 of Constitution of India is not daunted, where glaring injustice demands affirmative action. This is the suo-moto taken up matter treated as Public Interest Litigation. Whenever injustice is meted out to a large number of people, Court will not hesitate in stepping in. In furtherance of the public interest and in the interest of justice, on the available materials, it is necessary to enquire into the incidents on 19.2.2009.

It has been observed about the person or aggrieved party in Shukla’s Constitution of India, at p. 557 as under:

                Article 226 in terms does not describe classes of persons entitled to apply thereunder, but the existence of the right is the foundation of the exercise of jurisdiction by the High Court. The legal right that can be enforced must ordinarily be the personal right of the petitioner himself who complains of such right and approaches the court for relief.

It further went on to say, at p. 558, that “the concept of locus standi has undergone a sea change, particularly in respect of public interest litigation. The same liberalized principles of locus standi are applicable to Article 226 as are to Article 32.” We have to analyze these comments.

In a 2008 case, Delhi High Court took  suo motu notice on the following facts:

                2. On 30th May, 2007 a TV news channel - NDTV - carried a report relating to a "sting" operation. The report concerned itself with the role of a defence lawyer and the Special Public Prosecutor in an ongoing Sessions trial in what is commonly called the "BMW case".

                3. On 31st May, 2007 a Division Bench of this Court, on its own motion, registered a writ petition being WP (Crl.) No. 796 of 2007 since it was of the opinion that if the reported contents were true, they raise serious issues concerning criminal justice administration. Under these circumstances, the Division Bench felt it expedient and in the interest of justice to ascertain the full facts from NDTV.

In this case, the role of the media has been explained as under:

            50. There is no doubt, as observed by the Supreme Court in Rajendra Sail v. M.P. High Court Bar Association, (2005) 6 SCC 109 that the reach of the media is to every nook and corner of the world, particularly these days when we have 24-hour news channels and webcasts on the Internet. The Supreme Court also observed that a large number of people tend to believe as correct that which appears in the print or electronic media. For these reasons alone, the mass media has to be circumspect while dealing with „news‟.

The suo motu contempt proceedings resulted in conviction of the advocates who were respondents of the proceedings.

In the Case of S.C. and Weaker Section Welfare Association v State of Karnataka, AIR 1991 SC 1117, the Supreme Court has taken up a matter where the petitioners were refused to stand for a judgment in their favour on the ground that they have no interest in the matter and that the question of public interest is not established. The Supreme Court of India refuted this reasoning of the High Court and held (at p. 1119):

            Where a member of of the public acting bona fide moves the court for enforcement of a fundamental right on behalf of a person or class of a persons who on account of poverty or disability or socially or economically disadvantaged position cannot approach the Court for relief, such member of the public may move the Court even by just writing a letter as held by this Court in Bandhua Mukti Morcha v. Union of India (1984) 2 SCR 67: (AIR 1984 SC 802). We are, therefore, of the view that the High Court was wrong in concluding that appellants were incompetent to invoke the jurisdiction of the Court.

It has also been held, with respect to the powers of the High Court to issue writ in cases of public interest matters, in Chaitanya Kumar v State of Karnataka, AIR 1986 SC 825, 831, that

            …the Court cannot close its eyes and persuade itself to uphold publicly mischievous executive actions which have been so exposed. When arbitrariness and perversion are writ large and brought out clearly, the Court cannot shirk its duty and refuse its writ. Advancement of the public interest and avoidance of the public mischief are the paramount considerations…

A leading authority from India was Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802, wherein the jurisdiction of the Supreme Court under Article 32 of Indian Constitution was under discussion. However, the Court has aptly remarked about the jurisdiction of the High Courts in India, while giving reference to the Judges Appointment Case (1982) 2 SCR 365 : AIR 1982 SC 149, in the following words:

            …[Supreme] Court for the first time took the view that where a person or class of persons to whom  legal injury is caused by reason of violation of a fundamental right is unable to approach the Court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move Court for relief under Article 32 and a fortiorari, also under Article 226, so that the fundamental rights may become meaningful not only for the rich and the well-to-do who have the means to approach the Court but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress.

This judgment itself provides the scope of powers of the High Courts, when at para 15, p.817, the Supreme Court has authoritatively held:

            We may point out that what we have said above in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide terms as jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Article 226.

The Court further went on to elaborate the powers of High Court when it held:

            In fact, the jurisdiction of the High Courts under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental right.

The Indian courts have been flooded with the public interest litigation cases after the enabling judgments were pronounced by the Supreme Court since 1980s. Now, the over-burdened public spirited courts were trying to look after some way to weed out the fake, publicity oriented, personal interest litigation, media based litigation etc from the genuine public interest cases. For this, the Courts started to find out how this can be done. Thus, the situation has been analyzied in M/S Holicow Pictures Pvt Limited v Prem Chandra Mishra & Ors., AIR 2008 SC 913. At p.919 (para 22) of this judgment, it has thus been aptly remarked:

            As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases.

Regarding taking actions on newspaper clippings by the High Courts in their public interest jurisdiction, the Court went on to observe:

            It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained….such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs…”.

Basu, in his Commentary on the Constitution of India,[4] has made it clear that the “[c]onstitutional courts can initiate suo motu action in public interest. On the basis of a newspaper report regarding the death of twenty-five mentally retarded persons in Tamil Nadu, Suo motu action was taken. Karnataka High Court observed that whenever a matter of grave public importance is to be brought by Court (suo moto), a reference may be made to the Chief Justice of the High Court for necessary action.”[5] Few cases are analyzed here in this regard.

In High Court of Karnataka v State of Karnataka, AIR1998 Kant 327 (DB),[6] the facts were:

            Taking cognizance of two news items published in the Times of India dated 11-1-1996 in its Bangalore Edition, a learned Judge of this Court initiated suo motu action directing the Registrar General to register his order of reference as writ petition and obtain appropriate orders from the Chief Justice for allocation of Court. In his order of reference, the learned Judge found that there was virtual break-down of law enforcement machinery which was found reflected because of the alleged rise of crime in the city of Bangalore.

The Respondent government took objection on the sweeping observations made in the order of learned single judge. The learned Division Bench of Karnataka High Court then gave the following observation about the suo moto power of the High Court on the matters of public importance highlighted by the press:

            We are of the opinion that initiation of writ proceedings suo motu in public interest is inalienable part of the constitutional scheme and within the competence of every Hon'ble Judge of this Court.

However, the Court went on to explain about the limitation on said power in the following manner:

                But, such power is required to be exercised and regulated in accordance with the rules made, the norms set by the High Court, keeping in view the administrative instruction issued and Roster of Sitting prepared by the Chief Justice. While exercising the suo moto power of initiating public interest litigation self-restraint and judicious exercise is expected to be borne in mind. Such power has to be resorted to cautiously and sparingly in order to ensure that such exercise is not utilised merely for publicity or purposes alien to the object sought to be achieved. It would be appreciated that as and when any matter of public importance is sought to be brought to the notice of the Court, a reference may be made to the Chief Justice for initiation of action. The Chief Justice in turn is required to get the matter examined according to the guidelines formulated by the Hon'ble Supreme Court and this Court in that regard. After the matter is examined, the same can be placed before the appropriate Bench in accordance with the directions issued in that regard by the Chief Justice, for further necessary action. It is expected that before initiating suo motu proceedings in public interest, care shall be taken to keep in mind the relevant judgments of the Apex Court and this Court on the subject.

At the same time, the Court was conscious that the role of the press is very critical in present day world of information technology. It is so because use of courts suo moto powers on the basis of newspaper clippings requires that at least the news items published in the press are reported after due verification of facts. Otherwise, it will become mockery of the whole process. It has thus been observed  by the Court:

                6. The importance of the press in a democratic set up can neither be minimised nor curtailed. The conferment of freedom of speech and expression on the press pre-supposes their responsibilities, limitations and accountability. It is expected from a responsible press that before reporting, they shall exercise restraint and try to ascertain the genuineness, correctness and the authenticity of the report to be published. It is emphasised that such an obligation is expected more while reporting the Court proceedings. Before reporting the Court proceedings, the responsible press is required to ascertain the true position either from the record or from an official of the registry. Such a course is necessary not to erode the confidence of a common man in the judiciary. We are sure that the press would come to the expectations of the people and take effective measures wherever needed in reporting the matters of public importance.

             

As we have discussed above that the powers of the High Court under Article 226 and powers of the Supreme Court under Article 32 to take suo motu actions on violation of fundamental rights are wide enough, thus the action taken by the Supreme Court of India on news reports become precedent for the High Courts to follow the same line of action where relevant. Hence, a suo moto action was taken by the Supreme Court of India on a note put up by the Registrar based on newspaper reports that some mentally retarted persons have been killed in a fire outburst in a mental health facility. The Court in In Re: Death of 25 Chained Inmates in Asylum Fire in Tamil Nadu, AIR 2002 SC 979 and AIR 2002 SC 3693 have passed orders to the government concerned to take some policy actions for avoidance of such like incidents in future.

In Friends Colony Development Committee v State of Orissa, AIR 2006 SC 1846, the Supreme court has directed the High Court, in a case where the illegal constructions were brought to the notice of the High Court and case was registered as a PIL case that “the High Court, if it feels that illegal or unauthorized building activities are so rampant as to be noticed judicially, may suo motu register a public interest litigation and commence monitoring the same by issuing directives so as to curb such tendency and fixing liability and accountability.”  

Basu has further explained at p. 6777 (vol 6) that “rules framed by the High Courts under Article 226 do not prohibit or bar initiation of proceedings by the Court on the basis of letters or telegram, other communication or even suo motu.”

In Divine Retreat Centre v State of Kerala AIR 2008 SC 1614 and State of Rajasthan v Prakash Chand, AIR 1998 SC 1344, the ratio declares that the individual judges cannot pick and choose any case pending in the High Court and assign the same to themselves for disposal without appropriate orders from the chief justice. Hence individual judges ought not to entertain communication and letters personally addressed to them and initiate action on the judicial side based on those letters and if any individual letters or petitions are received by individual judges, they must be placed before Chief Justice for consideration as to the proposed action on such letters or petitions.[7]

---

[1] 9^th Ed, Lucknow: Eastern Book Company, 1996 reprint, at p. 550.

[3] W.P.Nos.3335, 3703, 3704, 3705 and 3910/2009. Available online at http://www.indiankanoon.org/doc/837034/. Visited 10.10.2012.

[4] Durga Das Basu, Commentary on the Constitution of India, 8^th Edition, Nagpur: Butterworths Wadhwa,  (2010).

[5] Basu (ibid), vol. 6, p. 6826.

[6] Available online at http://www.indiankanoon.org/doc/230558/. Visited 12.10.2012.

[7] See Basu, vol. 6, pp. 6678-9.

FEATURES OF SPECIAL LAW IN CONTEXT TO A GENERAL LAW

Whether a law is general or special.. the courts will look to its substance and practical operation, rather than to its title, form and phraseology. The fact that a statute is expressed in general terms is not conclusive that it is a general, rather than a special or local law. “A law is general one where it relates to persons, entities, or things as s class, or operates equally or alike upon all of a class, omitting no person, entity or thing belonging to the class.” (American Jurisprudence, vol. 50, P.19, s.6, as quoted in Understanding Statues, 2008 ed by SM Zafar).

                A general law is one which embraces a class of subjects or places and does not omit any subject or place naturally belonging to such class. A special act is one which relates to particular persons or things of a class. ( Crawford’s Interpretation of Laws, Pakistan Law House, p.103)

                Where general law can be made operative, special enactment will be against the spirit of law [74 F.2d 286 (1934)].

            Special law can be seen from the language of the enactment. It is departure from and contrast to a general law. If special laws provide particular procedure, it has to be followed and general law cannot be given effect in this regard impliedly. Likewise, if a forum is provided in special law, it excludes other forums provided in general law. Further, a later general law cannot repeal an earlier special enactment, unless the intention is clear from the language of the enactment. It is particular to mention that sometimes, in given circumstance of a case, if the identical provisions are found in general and special enactment, the general law may prevail. If also it is found that the special enactment is contradictory, conflicting and inconsistent with later general law, the general law will prevail. Pakistani and Indian case law is quite in consonance on these points.

            In US jurisdiction, it has been established that where general law is to be applied for uniformity, special law cannot be enacted.

A.     PAKISTANI CASE LAW:

                Special law is departure from and contrast to general law containing provisions relating to such subject for which a special statute was made operative. (The State v. Mst Fazeelat Bibi, PLD 2010 Lahore 498 at p. 508.)

                When there is no special law, the ordinary / general laws come forward to fill in the vacuum.  (Air League of PIAC Employees v. Federation of Pakistan and others, 2011 SCMR 1254, at p. 1279.)

                Special law dealing with specific matter and providing special procedure thereof---effect---such special procedure in such matter would be followed and not that provided under general law (Shehzad Khan Khakwani v. Aamir Hayat Haraj and others, 2011 CLC 25, at p. 28; see also Muhammad Bashir v. Yaseen, 2011 CLC 1464, at p. 1469)

                It would not be justified to disregard conditions for use of a power mentioned in special law by giving reference to general law. (Royal PVC v. Registrar of Trade Marks, 2011 CLD 833, at p. 841)

                If a special law ousts jurisdiction of a forum, same cannot be assumed under a general law. (Murshid Ali v. SHO Police Station Saddar, 2011 CLD 1539, at pp. 1541-2)

                A general later law does not abrogate an earlier special class of objects. Principle Generalia specialibus non derogant, or in other words, where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealth with by earlier legislation, one is not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. (Inspector  General  of Police v. Mushtaq Ahmad, PLD 1985 SC 159, at p.173.)

                It has been held in R.B. Alvi v. Custodian, Evacuee Property, (PLD 1962 (WP) Lahore 84, at pp. 89-90, that if subject-matter is identical in general and special law, in given circumstances of the case, the principle that special law will prevail over general law will not apply.

                In the same enactment, special provisions  to prevail over the general provisions. (Muhammad Hossain MEA v. Member Board of Revenue, PLD 1963 Dacca 971, at pp. 978 & 980)

A.     INDIAN CASE LAW:

Indian Supreme Court held in S. Prakash & Anr vs K.M. Kurian & Ors on 13 May, 1999, as under:

“But the rule must not be pressed too far, for, as Bramwell L.J. said in Pellas vs. Neptune Marine Insurance Co. (1980) 5 C.P.D. 34, 40 a general statute may repeal a particular statute/ And if a special enactment, whether it be in a public or a private Act, and a subsequent general Act are absolutely repugnant and inconsistent with one another, the courts have no alternative but to declare the prior special enactment repealed by the subsequent general Act.”

                (Copy Attached)

                Where there are general words in a later Act capable or reasonable and sensible application without extending them to subjects specially dealt with earlier legislation, the earlier and special legislation cannot be held to have been indirectly repealed or derogated from merely by force of such general words without any indication of particular intention to do so.  (E G Barsay v. The State, AIR 1958 Bombay 354, at p. 364) See also AIR 1931 Madras 152.

                Speciality in respect of locality has greater importance than in respect of subject-matter. (AIR 1930 Madras 963, at p. 968)

                To which extent a special law overrides the provisions of general law depends upon the language of special Act. (AIR 1926 Patna 232, at p. 236).

A.     UK Case Law:

Seward v. The Vera Cruz case, (1884) 10 AC 59 at p. 68, as quoted in Maxwell on Interpretation of Statutes, 12^th Ed, is the case that has been relied by the Bombay High Court in AIR 1958 Bombay 354, at p. 364, just mentioned above.

Maxwell on Interpretation of Statutes, 12^th Ed, p. 198, also refers to another situation, on the basis of Earl of Abergavenny v. Brace (1872) LR 7 Ex. 145, that:

“Thus, the Fines and Recoveries Act, 1833 which, in the most comprehensive terms, authorized, “every tenant in tail” to bar his entail would have no application to the tenant in tail of property entailed by special Act of Parliament, such as the Shrewsbury, Marlborough, Wellington, and other estates.”

A special provision in an earlier law has to prevail over a general law which is later in time, unless the legislature has intention to say otherwise. R v. Bridge (1890) 24 QBD 609.

A.     US CASE LAW:

74 F.2d 286 (1934) UNITED STATES v. MULLENDORE et al

"Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."

The requirement of generality and uniformity thus exacted does not necessarily mean that a statute must operate upon every person and in every locality within the state. A law may be general and uniform within the meaning of the constitutional provision, if it operates alike upon all within designated classes and places. The Legislature has power to classify persons or counties to be included within a statute. That classification must not be unreasonable, arbitrary, or capricious. On the contrary, it must be reasonable and substantial. Those included must bear some distinctive characteristics from those excluded. Burks v. Walker, 25 Okl. 353, 109 P. 544; Hatfield v. Garnett, 45 Okl. 438, 146 P. 24; Key v. Donnell, 107 Okl. 157, 231 P. 546; Roberts v. Ledgerwood, 134 Okl. 152, 272 P. 448; State v. Board of Commissioners, 77 Kan. 527, 94 P. 1004.

(Annexed. Soft copy available)

Mere time limit does not make a law local or special. (See Crawford’s Interpretation of Laws, published by Pakistan Law House, p. 117.)

General Law has to operate uniformly on all subjects:

In Austintown Township Bd. of Trustees v. Tracy, 76 Ohio St. 3d 353 - Ohio: Supreme Court 1996, it has been held:

…that general laws "cannot operate upon the named subject matter in one part of the state differently from what it operates upon it in other parts of the state. That is, the law must operate uniformly on the named subject matter in every part of the state, and when it does that it complies with this section of the Constitution."            

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