Last Updated: Saturday June 09, 2012
PLD 1993 Supreme Court 473
[Original Jurisdiction]
Present. Nashn Hasan Shah, CJ.,
Shaflur Rahman,
Saad Saood Jan, Abdul Qadeer
Chaudliry, Ajnial Mian,
Muhammad Aftab Lone, SajjadAli
Shah, Multanimad Rafique Tarar,
Saleem Akhtar,, Saeeduzzanian
Siddiqui and Fazal Elahi 10tan, J1
Mian MUHAMMAD NAWAZ SHARIF ‑‑‑
Petitioner
versus
PRESIDENT OF PAKISTAN and others ‑‑‑
Respondents
Constitutional Petition No. 8
of 1993, decided on 26th May, 1993.
Per
Dr. Nasim Hasan Shah, C.J.; Abdul Qudeer Chaudhry and Fazal Elahi Khan, JJ.
agreeing; Sajjad All Miah, J. Contra‑‑‑
(a) Constitution of
‑‑‑‑
Arts. 184(3) & 58(2)(b) ‑‑‑ Constitutional petition under
Art.184(3) before Supreme Court ‑‑‑ Maintainability ‑‑‑
Dissolution of National Assembly and dismissal of Prime Minister and the
Cabinet by the President of Pakistan under Art.58(2)(b) of the Constitution ‑‑‑
Petition under Art.184(3) of the Constitution praying that order of dissolution
of National Assembly and dismissal of Prime Minister and the Cabinet by the
President be declared mala fide, without lawful authority, null and void and of
no legal effect and all steps taken in implementation of or taken as a result
of the said order of dissolution including the appointment of the Care‑taker
Cabinet be also declared as null and void with a further prayer that the
President of Pakistan and others be‑ restrained from interfering with the
functions and duties of the elected Government headed by the petitioner and no
impediments be placed in the functioning of the National Assembly ‑‑‑
Preliminary objection was raised to the effect that petition filed under
Art,184(3) of the Constitution directly before the Supreme
Court
was not maintainable and was liable to be dismissed on that ground‑‑
Supreme Court proceeded to join the preliminary objection (regarding the
maintainability of the petition) with the questions arising on merits and
observed that both of these questions shall be heard and decided together and
adjourned the matter for full and final arguments, the parties having been
directed to complete the records in the meanwhile.
(b)
Constitution of
‑‑‑‑
Part 11, Chap. 1 ‑‑‑ Fundamental rights ‑‑‑
Concept ‑‑‑ Fundamental rights are to be construed in
consonance with the changed conditions of the society and must be viewed and
interpreted with a vision to the future ‑‑‑ Need to
reevaluate the essence and soul of Fundamental Rights as originally provided in
the Constitution emphasized.
Fundamental
Rights in essence are restraints on the arbitrary exercise of power by the
State in relation to any activity that an individual can engage. Although
Constitutional guarantees are often couched in permissive terminology, in essence
they impose limitations on the power of the State to restrict such activities.
Moreover, Basic or Fundamental Rights of individuals which presently stand
formally incorporated in the modern Constitutional documents derive their
lineage from and are traceable to the ancient Natural Law. With the passage of
time and the evolution of civil society great changes occur in the political,
social and economic conditions of society. There is, therefore, the
corresponding need to re‑evaluate the essence and soul of the fundamental
rights as originally provided in the Constitution. They require to be construed
in consonance with the changed conditions of the society and must be viewed and
interpreted with a vision to the future.
Hurtadc
v. California 110 US 516 and Benazir Bhutto’s case PLD 1988
(c)
Constitution of
‑‑‑‑
Art. 17 ‑‑‑ Term “operating” occurring in Art.17(2) ‑‑‑
Connotation‑‑Fundamental Right guaranteed by Art.17(2) ‑‑‑
Scope and extent ‑‑‑ Right conferred by Art.17 includes not
merely the right to form a political party but comprises also other
consequential rights ‑‑‑ Guarantee “to form a political party’
must be deemed to comprise also the right by that political party to form the
Government, wherever the said political party possesses the requisite majority
in the Assembly‑‑‑Any unlawful order which results in
frustrating such activity, by removing such party from office before the
completion of its normal tenure would, therefore, constitute an infringement of
Fundamental Right guaranteed in Art. 17(2) of the Constitution.
i
Term “operating” as used in Article 17(2) includes both healthy and unhealthy
operation of a political party. While Article 17 contains limitations and
checks against unhealthy operation of the political party; no provision exists
therein in relation to its healthy operation. However, the mere omission to
make any specific provision in regard to this aspect does not imply that
Fundamental Right 17 does not also comprise this aspect of the matter. Indeed, a
positive right implies, as part of the same right, a negative right and vice
versa.
The
right conferred by Article 17 includes not merely the right to form a political
party but comprises also other consequential rights.
Fundamental
Right conferred by Article 17(2) of the Constitution whereby every citizen has
been given “the right” to form or to be a member of a political party comprises
the right to participate in and contest an election.
Forming
of associations necessarily implies carrying on the activities of an
association, for the mere forming of association would be of no avail.
The
ordinary conception of a political party includes a right within the framework
of the Constitution to exert itself through its following and Organization, and
using all available channels of mass communication, to propagate its views in
relation to the whole complex of the administrative machine, including the
Legislatures, in respect of matters which appear to it to require attention for
the amelioration of conditions generally throughout the nation, for
improvements particularly in administrative procedures and policies as well as
in the legislative field, even to the extent of proposing and pressing for
amendment of the Constitution itself.
Reading
Article 17(2) of the Constitution as a whole it not only guarantees the right
to form or be a member of a political party but also to operate as a political
party ... ... Again, the forming of a political party necessarily implies the
right of carrying on of all its activities as otherwise the formation itself
would be of no consequence. In other words, the functioning is implicit in the
formation of the party
Article
17(2) provides a basic guarantee to the citizen against usurpation of his will
to freely participate in the affairs and governance of
Thus,
in the scheme of the Constitution, the guarantee “to form a political party’
must be deemed to comprise also the right by that political party to form the Government,
wherever the said political party possesses the requisite majority in the
Assembly.
Accordingly,
the basic right “to form or be a member of a political party” conferred by
Article 17(2) comprises the right of that political party not only to form a
political party, contest elections under its banner but also, after
successfully contesting the elections, the right to form the Government if its
members, elected to that body, are in possession of the requisite majority. The
Government of the political party so formed must implement the programme of the
political party which the electorate has mandated it to carry into effect. Any
unlawful order which results in frustrating this activity, by removing it from
office before the completion of its normal tenure would, therefore, constitute
an infringement of this Fundamental Right.
if
the lawful functioning of Government of a political party is frustrated (by its
dismissal) by an unlawful order, such an order is an impediment in the healthy
functioning of the political party and would, therefore, constitute an
infringement of the fundamental right conferred by Article 17(2). A petition
under Article 184(3) for its enforcement would, accordingly, be maintainable.
View
that rights guaranteed under Article 17(2) extend only to the right to form a
political party and the right to become a member of a political party or for
that matter the right guaranteed under Article 17(2) extends only to all the
political processes culminating in the election of its members to the National
Assembly and no more, cannot therefore be accepted.
Hurtade
v. California 110 US 516; Benazir Bhutto’s case PLD 1988 SC 416; Symbol’s case
PLD 1989 SC 66; Maudoodi’s case PLD 1964 SC 673 and West Virginia State Board
of Education v. Barnette (1942) 319 US 624 ref.
d) Constitution of
‑‑‑‑
Arts. 184(3), 17(2) & 58(2)(b) ‑‑‑ Dissolution of
National Assembly and dismissal of Prime Minister and Cabinet by the President
of Pakistan under Art.58(2)(b) of the Constitution‑‑‑Petition
under Art.184(3) of the Constitution to the Supreme Court praying that order of
dissolution of National Assembly and dismissal of the Prime Minister by the
President be declared as mala fide, without lawful authority, null and void and
of no legal effect and ail steps taken in implementation of or taken as result
of the said order of dissolution including the appointment of the Care‑taker
Cabinet be also declared as null and void with a further prayer that the
President of Pakistan and others be restrained from interfering with the
functions and duties of the elected Government headed by the petitioner and no
impediment be placed in the
functioning
of the National Assembly ‑‑‑ Maintainability of petition
under Art.184(3) challenged ‑‑‑ Held, if the lawful
functioning of a Government of political party was frustrated by its dismissal
by an unlawful order, such an order being an impediment in the healthy
functioning of the political party would constitute an infringement of
Fundamental Right conferred by Art.17(2)
and
petition under Art. 184(3) for its enforcement would be maintainable.
Term
“operating” as used in Article 17(2) includes both healthy and unhealthy
operation of a‑ political party. While Article 17 contains limitations
and checks against unhealthy operation of the political party; no provision
exists therein in relation to its healthy operation. However, the mere omission
to make any specific provision in regard to this aspect does not imply that
Fundamental Right 17 does not also comprise this aspect of the matter. Indeed,
a positive right implies, as part of the same right, a negative right and vice
versa.
If
the lawful functioning, of a Government of political party is frustrated. (by
its dismissal) by an unlawful order, such an order is an impediment in the
healthy functioning of the political party and would, therefore, constitute an
infringement of the fundamental right conferred by Article 17(2). A petition
under Article 184(3) for its enforcement would, accordingly, be maintainable.
View
that rights guaranteed under Article 17(2) extend only to the fight to form a
political party and the, right to become a member of a political party or for
that matter the right guaranteed under Article 17(2) extends only to all the
political processes culminating in the election of its member to the National
Assembly and no more, cannot therefore be accepted.
The
preliminary objection that petition under Article 184(3) of the, Constitution
was not maintainable could not be sustained.
Hurtade
v. California 110 US 516; Benazir Bhutto’s case PLD 1988 SC 416; Symbol’s case
PLD 1989 SC 60; Maudoodi’s case PLD 1964 SC 673 and West Virginia State Board
of Education v. Barnette (1942) 319 US 624 ref.
(e)
Constitution of
‑‑‑‑
Arts. 184(3) & 58(2)(b) ‑‑‑ Dissolution of National
Assembly and dismissal of Prime Minister and the Cabinet by the President of
Pakistan under Art.58(2)(b) of the Constitution of Pakistan‑‑‑Grounds
and material which form the basis of the order of dissolution are open to
scrutiny and judicially reviewable.
Haji
Muhammad Saifullah’s cage PLD 1989 SC 166 ref.
(f) Constitution of
‑‑‑‑
Art. 58(2)(b) [as added by Constitution (Eighth Amendment) Act (XVIII of 1985),
S.5(b)] ‑‑‑ Dissolution of National Assembly and dismissal of
Prime Minister and the Cabinet by the President of Pakistan under Art.58(2)(b)‑‑
Such an action of the President proceeded on an incorrect appreciation of the
role assigned to him in the Constitution and of the powers vested in him after
the amendment made in’ the Constitution of Pakistan (1973) by the Constitution
(Eighth Amendment) Act, 1985.
Dissolution
of National Assembly and dismissal of Prime Minister and Cabinet proceeds on an
incorrect appreciation of the role assigned to the President in the
Constitution and of the powers vested in him after the amendment made in the
Constitution of 1973 by the Constitution (Eighth Amendment) Act, 1985
introduced in the Constitution of 1973 shortly before its revival on 30th
December, 1985.
(g) Constitution of
‑‑‑‑
Art. 58(2)(b) [as added by Constitution (Eighth Amendment) Act (XVIII of 1985),
S.5(b)] ‑‑‑ Legislative history and effect of constitutional
amendments including amendment of Arts. 58 and 48.
(h) Constitution of
‑‑‑‑
Art. 58(2)(b)‑‑‑Dissolution Of National Assembly and
dismissal of Prime Minister and Cabinet by the President of Pakistan under
Art.58(2)(b) of the Constitution ‑‑‑ Held, if it could
be shown that no grounds existed on the basis of which an honest opinion could
be formed “that a situation has arisen in which the Government of the
Federation cannot be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary” the exercise of the
power by the President would be unconstitutional and open to correction through
judicial review.
Haji
Muhammad Saifullah’s case PLD 1989 SC 166 quoted and observation made that
after having found that order of dissolution was not sustainable Court should
have granted consequential relief.
Kh.
Ahmed Tariq Rahim’s case PLD 1992 SC 646 distinguished.
(i) Constitution of
‑‑‑‑
Arts. 58(2)(b), 46, 48(l)(6), 101, 91(4)(5), 242(IA), 243(2)(c) & 213 [as
added by Constitution (Eighth Amendment) Act (XVIII of 1985), Preamble]‑‑Role
assigned to the President and the powers vested in him after the adoption of
the Constitution (Eighth Amendment) Act, 1985 and responsibilities of the Prime
Minister expounded ‑‑‑ Distinctive features of a written
Constitution‑‑Constitution of Pakistan creates. a parliamentary
democracy ‑‑‑ Scheme of Constitution vis‑a‑vis
working relationship of President and Prime Minister elaborated.
The
role assigned to the President and the powers vested in him after the adoption
of the Constitution (Eighth Amendment) Act, 1985, to dissolve the National
Assembly by clause (2) of Article 58, which power was not earlier vested in
him, in addition he was empowered also to appoint, in his discretion, the Chief
Election Commissioner (Article 213), the Chairman of the Public Service
Commission (Article 242 (IA)) and the Chairman, Joint Chiefs of Staff Committee
(Article 243(2)(c)). He was also empowered to appoint the Governors of the
Provinces after consulting the Prime Minister (Article 101). Powers were also
conferred on him to refer any matter of national importance to a referendum
(Article 48(6)). Duty was cast on the Prime Minister vide the substituted
Article 46 to keep the President fully cognizant of the doings of his
Government.
In
view of newly‑added provisions in the Constitution of Pakistan (1973) by
the Constitution (Eighth Amendment) Act, 1985, it was argued in the present
case, wherein the President had dissolved the National Assembly and dismissed
the Prime Minister and the Cabinet under Article 58(2)(b), that a pre‑eminent
role had been assigned to the President. He was not now merely the
Constitutional Head of the State simply enjoying a high ceremonial office but
had, in fact, become a full partner in the governance of the country and indeed
the more important partner. In view of this pre‑eminent position as the*
Head of the State and in consonance with the spirit of the modified
Constitution (after the amendments made therein during the Martial Law period
and sanctified by the 8th Constitutional Amendment adopted in 1995) the Prime
Minister was expected to accept the guidance of the President and to act in
accordance with his advice and to mould his conduct accordingly. This
perception of the President became manifest from the terms of the impugned
order of dissolution itself. Reliance was placed not only on the specific
powers conferred on him by clause (2)(b) of Article 58 but also on “all other
powers enabling him” in that behalf. This was indicative of his belief that
besides the powers specifically conferred upon him by the terms of the
Constitution, some residual or implied powers also inhere in him.
Unfortunately,
this belief that he enjoys some inherent or implied powers besides those
specifically conferred on him under Articles 46, 48(6), 101, 242 (1A) and
243(2)(c) is a mistaken one. In a Constitution contained in a written document
wherein the powers and duties of the various agencies established by it are
formulated with precision, it is the wording of the Constitution itself that is
enforced and applied and this wording can never be overridden or supplemented
by extraneous principles or non‑specified enabling powers not explicitly
incorporated in the Constitution itself. In view of the express provisions of
written Constitution of Pakistan detailing with fullness, the powers and duties
of the various agencies of the Government that it holds in balance there is no
room of any residual or enabling powers inhering in any authority established by
it besides those conferred upon it by specific words.
Constitution
of
his
office as long as he commands the confidence of the majority of the members of
the National Assembly (Article 91(5)). In view of these provisions, the system
of Government envisaged by the Constitution of 1973 is of the parliamentary
type wherein the Prime Minister as Head of the Cabinet is responsible to the ‑Parliament,
which consists of the representatives of the nation.
It
is manifest, therefore, that in the scheme of the Constitution of Pakistan the
Prime Minister in administering the affairs of the Government is neither
answerable to the President nor in any way subordinate to him. In formulation
of the policies of his Government and in the running of its affairs, the Prime
Minister is answerable only to the National Assembly and not to the President.
Indeed, it is the President who is bound by the advice of the Prime Minister or
the Cabinet in all matters concerning formulation of policies and
administration of the affairs of the Government and not the other way about, as
appears to have been mistakenly understood. Undoubtedly, the President may
require the Cabinet or the Prime Minister, as the case may be, to reconsider
any advice tendered to him but the President is bound to act on the advice
tendered, even if it be the same, after reconsideration. Undoubtedly, both are expected to work in harmony and in
close collaboration for the efficient running of the affairs of the State but
as their roles in the constitution are
defined, which do not overlap, both can exercise their respective functions
unhindered and without bringing the machinery of the Government to a
standstill. Despite personal likes or dislikes, the two can co‑exist
constitutionally. Their personal likes or dislikes are irrelevant so far as the
discharge of their constitutional obligations are concerned. Despite personal
rancour, ill‑will and incompatibility of temperament, no deadlock, no
stalemate, no breakdown can arise if both act in accordance with the terms of
the Oath taken by them, while accepting their high office.
a)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ President of Pakistan can pass order of
dissolution of National Assembly and appeal to the electorate can be made only
when the machinery of the Government has broken down completely, its authority
eroded and the Government cannot be carried on in accordance with the
provisions of the Constitution.
The
people of
No
one man how-high-so-ever can, therefore, destroy an organ consisting of chosen
representatives of the people unless cogent, proper and sufficient cause exists
for taking such a grave action. Article 58(2)(b), no doubt, empowers the
President to take this action but only where it is shown that “a situation has
arisen in which the Government of the Federation cannot be carried on in
accordance with the provisions of the Constitution”.
The
expression ‘cannot be carried on’ sandwiched as it is between ‘Federal
Government’ and ‘in accordance with the provisions of the Constitution’
acquires a very potent, a very positive and a very concrete content. Nothing
has been left to surmises, likes or dislikes, opinion or view. It does not
concern itself with the pace of progress, the shade of the quality or the
degree of the performance or the quantum of the achievement. It concerns itself
with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in
ensuring the observance of the provisions of the Constitution.
The
intention of the law‑makers, as evidenced from their speeches and the
terms in which the law was enacted, shows that any order of dissolution by the
President can be passed and an appeal to the electorate made only when the
machinery of the Government has broken down completely, its authority eroded
and the Government cannot be carried on in accordance with the provisions of
the Constitution.
Constitution of
‑‑‑‑
Art. 41 ‑‑‑ President as the symbol of the unity of the
Federation is entitled to the highest respect and esteem by all the
functionaries of the State, but this respect and esteem will be forthcoming if
he conducts himself with utmost impartiality and neutrality, that he keeps
himself entirely aloof from party politics and does not give the impression to
any one that he is siding with one faction or working against the other.
(1)
Constitution of
‑‑‑‑
Arts. 58(2)(b), 17 & 184(3) ‑‑‑ Dissolution of National
Assembly and dismissal of Prime Minister and the Cabinet under Art.58(2)(b) of
the Constitution of Pakistan by the President of Pakistan vide Order dated 18th
April, 1993 being not within the ambit of the powers conferred on the President
of Pakistan under Art.58(2)(b) of the Constitution of Pakistan and other
enabling powers available to him in that behalf, was violative of Art. 17 of
the Constitution and without lawful authority and of no legal effect‑‑National
Assembly, Prime Minister and the Cabinet consequently were to stand restored
and entitled to function as immediately before the Presidential Order of 18th
April, 1993 was passed; all steps taken pursuant to the Presidential Order
dated 18th April, 1993 passed under Art. 58(2)(b) of the Constitution of
Pakistan such as appointment of Care‑taker Cabinet etc. were to be of no
legal effect ‑‑‑ Supreme Court, however, observed that all
orders passed, acts done and measures taken in the meanwhile by the Care‑taker
Government which had been done, taken and given effect to in accordance with
the terms of the Constitution and were required to be done or taken for the
ordinary orderly running of the State would all be deemed to have been validly
and legally done.
(in) Interpretation or constitution‑‑‑
‑‑‑‑
Held, in a Constitution ‘ contained in a written document wherein the powers
and duties of the various agencies established by it were formulated with
precision, it was the wording of the Constitution itself that was enforced and
applied and this wording could never be overriden or supplemented by extraneous
principles or non‑specified enabling powers not explicitly incorporated
in the Constitution itself.
Per Shaflur Rahman, J.; Nasim Hasan
Shah, C.J.; Saad Saood Jan; Ajmal Mian; Muhammad Afzal Lone; Muhammad Rdfiq
Tarar; Saleem Akhtar and Saeeduzzaman Siddiqui, JJ. agreeing; Saiiad Ali
Shah, J. Contra‑‑‑
(n)
Constitution of
‑Part
11, Chap. Fundamental Rights ‑‑‑ Fundamental Rights
guaranteed in any Constitution, an organic instrument, ‑are not capable
of precise or permanent definition and cannot be charted on a piece of paper
delineating their boundaries for all times to come.
(o) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Interpretation ‑‑‑
Article 58(2)(b) of the Constitution empowers the executive head to destroy the
legislature and to remove the chosen representatives ‑‑‑
Provision conferring an exceptional power provided for an exceptional situation
must receive the narrowest interpretation.
Federation
of
Per Saijad All Shah, J. (Contra)‑‑‑
Article
58(2)(b) of the Constitution has come to stay in the Constitution whether it is
liked or abhorred. Constitutions of two countries are not alike because
Constitution of each country is framed keeping in view the objective
conditions, historical and cultural background with pronounced customs and
religious ethos. If Article 58(2)(b) has come into existence and forms part of
the Constitution on account of some compromise and it is disapproved now it can
be removed or diluted or amended in the manner prescribed in the Constitution.
It is the function of the legislature to legislate and of the Court to
interpret the law. The Court cannot and should not take upon itself the duty of
entering into the field of legislature but should confine itself to its original
function of interpreting the provisions of the Constitution as they are and
other laws. While interpreting the provisions of the Constitution, it becomes
the duty of the Court to see that interpretation is done in such a manner which
advances the noble object of workability of the Constitution. The provisions of
the Constitution cannot be interpreted by the Court in such narrow form to make
that provision almost redundant and meaningless.
By
rejecting the material in support of grounds of dissolution in the instant
case, interpretation of Article 58(2)(b) is rendered by Supreme Court narrowing
down its scope to almost zero point which amounts to declaring that no
President would be able to ever dissolve the National Assembly and dismiss the
Government of the Prime Minister in spite of the fact that he has substantial
material in his possession because the Court is not satisfied with intrinsic
value of the material. In other words Article 58(2)(b) is rendered almost
redundant which can be done by the legislature only.
Supreme
Court as highest Court of the country has to act within the limitations
prescribed by the law while in the process of interpretation of the
Constitution and the law. Supreme Court can interpret but not legislate and
while interpreting can narrow down ‘the scope but not so much that the
provision under the comment is rendered almost redundant . So far Article
58(2)(b) of the Constitution is concerned, it is already interpreted and
construed very ably in the cases of Haji Saifullah Khan and Khawaja Ahmed Tariq
Rahim. Power under Article 58(2)(b) can be exercised by the President when
there is actually an imminent breakdown of the Constitutional machinery and
there is failure of not one but many provisions of the Constitution giving impression
that country is being run by methods extra‑Constitutional. The President
must form his opinion on the basis of material before him.
Article
58(2)(b) is an independent provision under which the President is empowered to
dissolve the National Assembly in his discretion if he is satisfied that a
situation has arisen in which the Government of Federation cannot be carried on
in accordance with the provisions of the Constitution and an appeal to the
electorate is necessary. Opinion of the President cannot be substituted by the
Court. If he has formed such opinion and the grounds of dissolution are
supported by material which was available before him at the time of formation
of such opinion, the Court should allow order to stand and political sovereign
to give final decision.
(P) Constitution of
‑‑‑‑
Arts. 58(2)(b) & 64 ‑‑‑ Rules of Procedure and Conduct of
Business in the National Assembly, 1992, R. 25 ‑‑‑
Resignations by members of National Assembly ‑‑‑ President of
Pakistan could not have received such resignations at all muchless have acted
on them for any purpose before they reached the Speaker ‑‑‑
Act of the President of receiving, entertaining and acting on such resignations
of dissatisfied members of the National Assembly shifted the venue
constitutionally provided for showing no confidence in the Government from the
National Assembly to the Presidency ‑‑‑ Dissolution of
National
Assembly
and dismissal of the Prime Minister and the Cabinet by the President under Art.
58(2)(b) of the Constitution on the ground of such resignations, thus, was
misconceived.
S.R.
Bommai and others v. Union of India and others AIR 1990 Karnataka 5; A.K.
Fazalul Ouader Chaudhury v. Sycd Sha h Nawaz and 2 others PLD 1966 SC 105 and
Mirza Tahir Bcg v. Syed Kausar Ali Shah and others PLD 1976 SC 504 ref.
(q) Constitution of
‑‑‑‑
Art. 58(2) (b)‑‑Mal‑administ ration and the political
victimisation were not the type of constitutional problems which could justify
the dissolution of National Assembly by the President‑‑‑Proper
course in such matters was to go to the constitutional and statutory bodies
like the Parliament, the Courts and the press for redress rather than obtain
and justify dissolution of the established Government of the country.
Haji
Muhammad Saifullah Khan’s case PLD 1989 SC 166 ref.
W Constitution of
‑‑‑‑
Art. 58(2)(b)‑Allegations made in the Press which remain undecided in
Court of law in accordance with the prescribed procedure could not be taken as
a ground for dissolution of National Assembly by the President under
Art.58(2)(b) ‑‑‑ Such allegations were made basis for forming the opinion giving harsh
constitutional treatment to an established Government enjoying the support of
the majority of the people.
(s) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and Cabinet, inter alia,. on the ground of Prime
Minister being. Guilty of subversion which was in fact high treason under the
law ‑‑‑ Held, such an indictment and verdict given in
a constitutional document was political career killer and such a finding could
only be recorded after a judicial pronouncement and not in an executive and
political instrument made under ‑Art. 58(2)(b) of the Constitution.
W
Constitution of
‑‑‑‑
Part II, Chap. I ‑‑‑ Fundamental Rights, enforcement of ‑‑‑
Constraints of adversary litigation do not inhibit the Court in the matter of
enforcement of Fundamental Rights.
(u) Constitution of
‑‑‑‑
Arts. 6 & 12 ‑‑‑ High Treason (punishment) Act (LXVIII of
1973), Ss. 3 & 2 ‑‑‑ Punishment for high treason ‑‑‑
Procedure ‑‑‑ Failure of Federal Government in designating
the authorised person on whose complaint offence of high treason can be taken
cognizance of by the Court ‑‑‑ Such failure is not of the
Constitution and Parliament but of the executive Government and that too since
1973 of not giving a salutary constitutional provision a meaningful content and
operational mechanism thereby frustrating same altogether.
(v)
Interpretation of Constitution‑
‑‑‑‑
Three rules of interpretation peculiar to the Constitution distinguishing it
from every other instrument, stated.
There
are three rules of interpretation peculiar to the Constitution distinguishing
it from every other instrument. These principles stand recognised in all
countries having written Constitutions.
While
the language of the Constitution does not change, the changing circumstances of
a progressive society for which it was designed yield new and fuller import to
its meaning.
The
entire Constitution has to be read as an integrated whole, and no one
particular provision destroying the, other but each sustaining the other.
This
is the rule of harmony, rule of completeness and exhaustiveness and the rule of
paramountcy of the written Constitution.
The
words of the written Constitution prevail over all unwritten Conventions,
Precedents and Practices.
Paul
M. Sweezy v. State of New Hampshire by Louis C. Wyman, Attorney‑General
354 US 134 = 1 L ed 2d 1311 = 77 S Ct 1203 and Hurtado v. California 110 US
516, 528, 529 = 28 L ed 232, 236 = 4 S Ct 111, 292 and M’Culloch v. Maryland
(US) 4 Wheat 316, 4 L ed 579.
Per Sajjad Ali Shah, J. Contra‑
It
is the function of the, legislature to legislate and of the Court to interpret
the law. The Court cannot and should not take upon itself the duty of entering
into the field of legislature but should confine itself to its original
function of interpreting the provisions of the Constitution as they are and
other laws. While interpreting the provisions of the Constitution, it becomes
the duty of the Court to see that interpretation is done in such a manner which
advances the noble object of workability of the Constitution. The provisions o
the Constitution cannot be interpreted by the Court in such narrow form to make
that provision almost redundant and meaningless.
(w) Constitution‑‑‑
‑‑‑‑
What judgment and value to be brought to bear on the Constitutional provisions stated.
In
the evaluation of facts, logic, experience and intuitions of public policy play
mutually complementary parts. Without logic the law would be wholly at large,
at the mercy of every gust of chance and favour; without experience, without
clear intuitions of public policy, the consistency of concepts would exact too
high a price of inconsistency with history, practical convenience and the
welfare of society. The logic of law is the discipline which gives it such form
and consistency as it may attain at successive stages of its development.
Experience is the rich inheritance of its past development. Neither logic nor
experience affords a sufficient, nor sometimes a relevant, answer to
essentially new problems. To resolve such problems one must have recourse ‘to
the deeper recesses of the mind. The facts define the problem. Neither they nor
logic can solve it. Imagination furnishes an answer. The answer must be
reconcilable with the facts and defensible in logic, but the test of its
relevance and adequacy is neither the facts nor logic but purposes and values.
“Logic,
Experience and Intuition” in A
(x) Constitution of
‑‑‑‑
Art. 64 ‑‑‑ Resignation‑‑‑“Resignation from
a public office”‑‑Meaning‑‑Resignation from a public
office has a very definite connotation and is defined as formal renouncement or
relinquishment of an office ‑‑‑ Resignation must be made with
intention of relinquishing the office accompanied by act of relinquishment.
Black’s
Law Dictionary ref.
(y)
Constitution of
‑‑‑‑
Art. 64 ‑‑‑ Rules of Procedure and Conduct of Business in the
National Assembly, 1992, R. 25 ‑‑‑ Resignation by member of
National Assembly‑‑Procedure ‑‑‑ Resignation is
not only required to be addressed to the Speaker but it should be intended to
be passed on to the Speaker of the Assembly‑‑Pivotal role which
Speaker plays in this regard and sanctity of the elected office stated ‑‑‑
Receiving of resignation outside the Parliament and non‑transmission ‘to
the addressee so as to use the same, or permit its use by others as a
negotiable instrument or as a weapon of offence directed against the opponent
was not only grossly violating the Constitution but also indulging in a highly
politically unethical conduct which was deplorable.
Not
only is the resignation required to, be addressed to the Speaker but that it
should be intended to be passed on to the Speaker of the Assembly
The
Speaker in a Parliamentary form of Government holds an office of highest
distinction and has the sole responsibility cast on him of maintaining the
prestige and the dignity of the House and each and every member composing the House. It is precisely for this
reason that the Constitution has ordained that a resignation by a member is
effective only when it is “addressed” to the Speaker: it was not intended to be
an idle formality. To relinquish a Parliamentary scat by resignation is a grave
and a solemn act. By and large our political institutions are fashioned on the
pattern of those obtaining in
Resignations
are resignations. If they are not resignations they are not worth the paper on
which they arc written. in view of the established Constitutional and legal
position in the country and abroad with regard to resignation from office by
elected representative none so elected can draft a resignation, address it to
the proper authority and yet not transmit to the addressee so as to use it, or
permit its use by others as a negotiable instrument or as a weapon of offence directed against
the opponents. Any one engaging in such an activity and associating himself
with it is not only grossly violating the Constitution but also indulging in a
highly politically unethical conduct. That it happened on such a large scale in
this case, at such a high level, and outside the Parliament is deplorable.
Before any one rejects parliamentary democracy as unsuited to our conditions,
let him see the mutilation of it, the level and by persons at whose hands it
has taken place.
The
preamble to our Constitution prescribes that “the State shall exercise its
powers and authority through the chosen representatives of the people”.
Defection of elected members has many vices. In the first place, if the member
has been elected on the basis of a manifesto, or on account of his affiliation
with a political party or on account of his particular stand on a question of
public importance, his defection amounts to a clear breach of confidence
reposed in him by the electorate. If his conscience dictates to him so, or he
considers it expedient, the only course open to him is to resign, to shed off
his representative character which he no longer represents and to right ,a re‑election.
This will make him honourable, politics clean, and emergence of principled
leadership possible. The second and more important, the political sovereign is
rendered helpless by such betrayal of its own representative. In the normal
course, the elector has to wait for years, till new elections take place, to
repudiate such a person. In the meantime, the defector flourishes and continues
to enjoy all the wordly gains. The third is that it destroys the normative
moorings of the Constitution of an Islamic State. The normative moorings of the
Constitution prescribe that “sovereignty over the entire universe belongs to
Almighty Allah alone, and the authority to be exercised by the people of
Mirza
Tahir Beg v. Syed Kausar Ali Shah and others PLD 1976 SC 504 and Parliamentary
Practice by May, 18th Edn., p. 45 rer.
Per
Saijad Ali Shah, J. Contra‑‑‑
The
question here is not of intrinsic value of resignations in the hands of the
President, which are in transit and have not reached the Speaker, but these
resignations are to be considered as material in support of the ground that
members of the National Assembly had lost confidence in the Federal Government
headed by the petitioner as Prime Minister and in such circumstances need was
felt with justification by the President for exercise of his power and discretion
under Article 58(2)(b) to dissolve the Assembly after objective assessment of
the situation.
Without
going into the question as to when in point of time the resignations would be
deemed as valid causing vacancies stricto senso, it can be said that this
material as such in the hands of the President could be considered by him to
form an opinion that 88 members who resigned could turn the scales in
conjunction with other concomitant circumstances showing that Federal
Government headed by the Prime Minister and National Assembly had lost its
mandate in the sense that its representative character was not same as it was
before when people voted for it.
Resignations
with the President can be considered as material in support of the ground of
dissolution that National Assembly has lost representative character and
mandate.
(Z)
Constitution of
‑‑‑‑ Art. 91(5)‑‑‑Held, the only way open to the President under the
Constitution for coming to the conclusion whether the Prime Minister did, or did
not command confidence of the majority of the National Assembly was by
summoning the National Assembly and requiring the Prime Minister to obtain a
vote of confidence from the Assembly ‑‑‑ Any other method
adopted for achieving the object, for forming an opinion, for giving effect to
it was not permissible.
There
are three positive compulsive indicators in Article 91(5) of the Constitution
of Pakistan. Firstly, there is the use of negative imperative “the President
shall not exercise his power”. It operates as a mandatory prohibition. The
second is the statement of the jurisdictional requirement and coupling it to
the exercise of power‑ by the use of the word “unless”. The
jurisdictional requirement is satisfaction of the President that the Prime
Minister does not command the confidence of the majority of the members of the
National Assembly. Thirdly the only course left constitutionally open for the
President for arriving at his satisfaction in this matter is to “summon the
National Assembly and require the Prime Minister to obtain a vote of confidence
from the Assembly”. Such a comprehensiveness, such a clarity and such attention
to the details is all in strict conformity with the established conventions of
Parliamentary democracy, as practised in countries having no written
Constitution.
The
only way open to the President under the Constitution for coming to the
conclusion whether the Prime Minister does or does not command confidence of
the majority of the National Assembly is by summoning the National Assembly and
requiring the Prime Minister to obtain a vote of confidence from the Assembly.
Any other method adopted for achieving the object, for forming an opinion, for
giving effect to it, is impermissible.
Per Saijad Ali Shah, J. Contra‑‑‑
When
Constitutional petition, was entertained in the case in Supreme Court straight
away without allowing it to be heard in the High Court and since there is no
other forum of appeal after Supreme Court, it was the bounden duty of Supreme
Court to have scrutinised the material produced in support of grounds of
dissolution with more care and caution in conformity with guidelines laid down
in the cases of Haji Saifullah Khan and Khawaja Ahmed Tariq Rahim decided by
Supreme Court earlier in point of time.
(aa) Words and phrases‑‑‑
... Shall”‑‑‑Connotation.
The
word “shall” is generally imperative or mandatory. It is a word of command, and
one which has always or which must be given a compulsory meaning; as denoting
obligation. It has a peremptory meaning and is generally imperative or
mandatory. This word is defined as a mandate where appearing in a
constitutional provision. The word “shall” be held to be merely directory when
no advantage is lost, when no right is destroyed, when no benefit is
sacrificed, either to the public or to any individual, by giving it that
construction.
Black’s
Law Dictionary and Ballentine’s Law Dictionary ref.
(bb) Interpretation of Constitution‑
‑‑‑‑
Prohibitory language in Constitution ‑‑‑ Rule of construction
‑Maxim “Expressio unius est exclusio alterius ‑‑‑
Application.
The
word “shall” is generally imperative or mandatory. It is a word of command, and
one which has always or which must be given a compulsory meaning; as denoting
obligation. It has a peremptory meaning and is generally imperative or
mandatory. This word is defined as a mandate where appearing in a
constitutional provision. The word “shall” be held to be merely directory when
no advantage is lost, when no right is destroyed, when no benefit is
sacrificed, either to the public or to any individual, by giving it that
construction.
Prohibitory
language stated in a Constitution is nearly always construed as mandatory.
The
general rule has been laid down that if directions arc given respecting the
time and mode of proceeding in which a power should be exercised, there is at
least a strong presumption that tile people designed it to be exercised in that
time and mode only. And constitutional provisions imposing duties upon the
Governor and the legislature have been held mandatory.
A specific constitutional
provision that its provisions are mandatory and prohibitory unless by express
words declared to be otherwise will, of course, be given effect. Such a
declaration applies to all sections of the Constitution alike, and is binding
on every department of the State Government, whether legislative, executive, or
judicial. And, as a result of the adoption of such a provision, a Court is not
at liberty to say that any constitutional prerequisite to the validity of a law
is of no practical effect, or to consider the policy of a provision whose
language seems plain and positive. Although it has been stated that even in the
absence of a declaration that its provisions arc mandatory and prohibitory, the
Courts would not treat the provisions of a Constitution as merely directory or
unessential, it has also been suggested that the reason for the insertion of a
specific statement on the matter in the
Constitution of one State was that certain decisions had previously held that the provisions of the State’s
earlier Constitution regarding the titles of legislative acts were directory
and not mandatory.
The word “shall” or “ought”, as
used in a constitutional provision, is usually imperative or mandatory ... ...
Mandatory constitutional provisions are binding on all departments of the
Government. Long usage can neither repeal, nor justify the violation of such
provisions, and disobedience or evasion is not permissible, even though the
best interests of the public might apparently be promoted in some respects .
... ... Restrictions and prohibitions in constitutional provisions arc
mandatory and must be obeyed . .... ... ... Generally, constitutional
provisions that designate in express terms the time or manner of doing
particular acts and that are silent as to performance in any other manner are
mandatory and must be followed. Such provisions are, in general, exclusive in
respect of the manner of performance and impliedly forbid performance in a.
substantially different manner.
In
the constitutional provision the word “not” following “shall” makes the
requirement of the provision negative imperative leaving no scope for a
departure therefrom. The word “unless” also limits and identifies the
jurisdictional requirement and the prescription of the method by which that
jurisdictional requirement is to be satisfied.
As
a general rule, in the interpretation of statutes, the mention of one thing
implies the exclusion of another thing. It therefore logically follows that if
a statute enumerates the things upon which it is to operate, everything else
must necessarily, and by implication, be excluded from its operation and
effect. For instance if the statute in question enumerates the matters over
which a Court has jurisdiction, no other matters may be included. Similarly,
where a statute forbids the performance of certain things, only those things
expressly mentioned are forbidden. So also, if the statute directs that certain
acts shall be done in a specified manner, or by certain persons, their performance
in any other manner than that specified, or by ‑any other person than one
of those named, is impliedly prohibited.
Words of the written
Constitution govern rather than are governed by Parliamentary Convention.
I
Pleasure
in appointment and holding of office unless qualified also includes power of
dismissal.
Limitations
cannot be read in general words used in the constitutional provisions
conferring power.
Court
should not be swayed by considerations of Policy and Propriety while
interpreting provisions of a written Constitution.
16
American Jurisprudence 2d at p. 507; Corpus Juris Sccundum, Vol. 16, p.175; BBC
English Dictionary and Alhaji D.S. Adegbenro’s case (1963) AC 614 rer.
(cc)
Constitution of
‑‑‑‑
Arts’ 92(3) & 64‑‑‑Rcsignations submitted by the
Ministers from the Cabinet fall in a category quite different from those of the
members of the National Assembly ‑‑‑
If the resignation by the Minister is addressed to the President and is
presented directly to the President and is given effect to by the President,
then it is indeed in full compliance of Art. 92(3) of the Constitution.
(dd) Constitution of
92
‑‑‑ Cabinet ‑‑‑ Collective responsibility
of Ministers of the 2abinct.
Collective
Ministerial Responsibility and Collective Solidarily by David Ellis, published
in Public Law (1980), pp. 307‑‑390 ref.
(ee)
Constitution of
‑‑‑‑
Art. 94 ‑‑‑ Prime Minister ‑‑‑ Collective
responsibility and consultation with the Ministers.
Public
Law (1982) on Choosing a Prime Minister by Rodney Brazier; Modern Foreign
Governments by Frederic A. Ogg; Public Law (1968) on Prime Ministerial Powcr.by
A.H. Brown and Indian Constitution by Jain, 1987 Edn., pp.102‑103 ref.
Per Sajjad Ali Shah, J. Contra‑‑‑
Under
Article 46 it is the duty of the Prime Minister to communicate to the President
all decisions of the Cabinet, relating to the administration of the ‑affairs
of the Federation and proposals for legislation. Under this provision the
President can require to submit for consideration of Cabinet matter on which
decision had been taken by the Prime Minister or’ a Minister but which had not
been considered by the Cabinet. Under Article 48 the President is to act on the
advice of the Cabinet or the Prime Minister. Clause (4) of this Article
provides that the question whether any, and if so what, advice was tendered to
the President by the Cabinet, the Prime Minister, a Minister or Minister of
State shall not be inquired into in, or by, any Court, Tribunal or other
Authority. This shows that the President can see the Ministers as permitted by
the Constitution.
YT)
Constitution of
‑‑‑‑
Arts. 58(2)(b) & 92(3) ‑‑‑ Resignation of Minister ‑‑‑
Effect ‑‑‑ Resignations of Ministers cannot form a ground for
taking action under Art. 58(2)(b) of the Constitution, they being wholly
irrelevant.
Resignations
from the Cabinet are not at all a sure indication of lack of confidence in the
Government nor do they affect or impair the smooth functioning of Parliamentary
democracy.
The
resignations of the Ministers should not have found place at all in the
dissolution order, nor could they have been taken into consideration or formed
ground for taking action under Article 58(2)(b) of the Constitution. They are
wholly irrelevant.
Cabinet
Government in
(gg)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and Cabinet by the President under Art. 58(2)(b) ‑‑‑
Recourse to any residual power cannot be had in view of the express provisions
of the Constitution detailing in fullness both the procedure and power.
(hh) Constitution of
‑‑‑‑
Arts. 58(2)(b) & 14 ‑‑‑ Dissolution of National Assembly
and dismissal of Prime Minister and Cabinet by the President under Art.
58(2)(b) on the ground of speech by the Prime Minister which as alleged
amounted to subversion ‑‑‑ Held, subversion being high
treason which is regarded as the highest crime known to law and the most
serious offence that may be committed against one’s own country, President had
no authority under the Constitution to pronounce such a finding and to make a
declaration against a citizen of Pakistan, ‘a leader 6f the majority
Prliamentry party, the Prime Minister of the country, for sustaining order of
dissolution of National Assembly and dismissal of Prime Minister and the
Cabinet which was clearly violative of first part of Art. 14 of the
Constitution of
(I) Constitution of
~ ‑‑Art.
58(~)(b)‑ Dissolution of National Assembly and dismissal of Prime
Minister and Cabinet by the President under Art. 58(2)(b) of the Constitution
on the grounds of. improper functioning of various Constitutional bodies
provided for securing integration, cohesion and understanding between the
Provinces; Parliament having not discharged its Constitution functions to
exercise its powers as required by Arts. 153 & 154 of the Constitution, and
in relation to Art. 161, and particularly in the context ‑of
privatisation of Industries in relation to item 3, Part 11 of the Federal
Legislative List and item 34 of the Concurrent Legislative List of the
Constitution and allegations of corruption, of mal‑administration, of
incorrect policies being pursued in matters financial, administrative and
international ‑‑‑ Held, requirements of Art. 58(2)(b) of the
Constitution of Pakistan were all objective and relatable to the various
Constitutional provisions‑If any of the Provincial Governments was
dissatisfied with a decision of the Council of Common Interests it could refer
the matter to the Parliament in a joint sitting where decision in that behalf
was final, unless there was specific and serious constitutional objection
raised by the Provinces, the conduct of policy in these matters should have
been left to the Prime Minister, action of President under Art. 58(2)(b) of the
Constitution was not justified; privatization of nationalised units had the
requisite statutory cover and none of such statutes had been objected to by the
President or sent for reconsideration by the Cabinet, action of President
dissolving the National Assembly under Art. 58(2)(b) on such ground was not
justified ‑‑‑ Allegations of corruption, of mal‑administration,
of incorrect policies being pursued in matters financial, administrative and
international were independently neither decisive nor within the domain of
President for action under Art.58(2)(b) as these were wholly extraneous and
could not sustain the order of the President dissolving the National Assembly.
(jj)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Diss0luti0n’of National Assembly and
dismissal of Prime Minister and the Cabinet under Art.58(2)(b) of the
Constitution of Pakistan by the President vide Order dated 18th April, 1993 ‑‑‑
Held, none of the ground made the basis of the action had been established;
that they bore no nexus to the order passed and grounds totally extraneous and
irrelevant and in clear departure of the constitutional provisions had been
invoked for taking action.
The
order of the President dissolving the National Assembly and dismissing the
Prime Minister and the Cabinet has too many subjective elements not recognized
by the Constitution for exercise of Presidential power of dissolution of
National Assembly. For example, the anticipatory action that the Government of
the Federation is not in a position to meet properly and positively the threat
to the security and integrity of Pakistan and the grave economic situation
confronting the country are no considerations, nor can the President make an
assessment of it independent of the Federal Government headed by the Prime
Minister, as the Parliament ‑ is established for that purpose.
None
of the grounds made the basis of the action has been established that they bear
no nexus to the order passed and grounds totally extraneous and irrelevant and
in clear departure of the Constitutional provisions have been invoked for
taking action.
(kk) Constitution of
‑‑‑‑
Arts. 58(2)(h), 14 & 91(5) ‑‑‑ President cannot dismiss
the Prime Minister and his Cabinet while exercising powers under Art.58(2)(b).
(11)
Constitution of
‑‑‑‑
Art. 243 [as amended by Revival of the Constitution Order, 1985 and
Constitution
(Eighth Amendment) Act (XVIII of 1985)] ‑‑‑ Scope ‑of
the amendment ‑‑‑ Appointment of all the Chief‑, of
Army, Air Force and the Navy had to take place on the advice of the Prime
Minister ‑‑‑ Chairman Joint Chiefs of Staff Committee had to
be appointed by the President in his discretion..
Prior
to the amendment of Article 243 the appointment of all the Chiefs, of the Army,
Air Force and the Navy had to take place on the advice of the Prime Minister.
The content of the amendment introduced by the Revival of the Constitution
Order was confined to one new post that was created, that was of the Chairman,
Joint Chiefs of Staff Committee and in respect of that newly‑created post
the appointing authority was made the President and in making that appointment
lie was to act in his discretion. Throughout the world interpreting and
understanding the Constitution and legislative instruments the punctuation are
not allowed to play any decisive role. Even if they do here the authorisation
or empowering by the Parliament and the provisions of the Revival of the
Constitution Order being confined to the post of Joint Chiefs of Staff
Committee it could not on any interpretation be extended to the other Chiefs.
(mm)
Interpretation of Constitution...
*
‑‑‑ Punctuations
are not ‘allowed to play any decisive role while interpreting and understanding
the Constitution and legislative instruments.
(nn)
Constitution of
‑‑‑‑
Arts. 184(3), 58(2)(b), 17 & 14 ‑‑‑ Constitutional
petition under Art.184(3) directly before the Supreme Court against Order by
the President of Pakistan dated 18th April, I~W dissolving National Assembly
and dismissing the Prime Minister and the Cabinet under Art.58(2)(b) and other
enabling powers available to him in that behalf ‑‑‑
Competence‑‑‑ Held, provisions of the
Constitution
which enabled political parties to reach the Government and after reaching the
Government to continue their political purpose unimpeded were all directed
towards ensuring fruition of Fundamental Rights guaranteed under Art.17 of the
Constitution and the petition under Art.184(3) was not only competent because
Fundamental Right 17 was directly involved but also because the first part of
Art.14 of the Constitution stood violated by attributing subversion to the
ousted Prime Minister and the Prime Minister was also being prevented by (lie
President from extending the political activity of the Executive Government of
the Federation to the Federally Administered Tribal Areas which too amounted to
violation of Fundamental Right guaranteed under Art.17(2) of the Constitution.
“Political”
has been defined as “pertaining or relating to the policy or the administration
of Government, State or nation; pertaining to, or incidental to, the exercise
of the functions vested in those charged with the conduct of Government;
relating to management of the affairs of the State”. “Political rights” have
been defined as “those which may be exercised in the formation or
administration of the Government, rights of citizens established or recognized
by Constitutions which give them the power to participate directly or
indirectly in the establishment or administration of Government.”
The
expression “flowering of an idea, artistic style, or political movement is its
successful development.
The
provisions of the Constitution which enable political parties to reach the
Government and after reaching the Government to continue (heir political
purpose unimpeded are all directed towards ensuring fruition of Fundamental Right
guaranteed under Art.17.
It
was difficult to agree with the contention that clause (2) o Article 17 of the
Constitution had a restricted field. If the Constitution‑makers chose to
treat it separately, compendiously and expressly, unlike any other known
Constitution of the world, why should one restrict and limit it. For an
extensive interpretation of it there was a positive indicator in the word
.operating”. There was healthy operating, there was unhealthy operating. By
taking care of unhealthy operating, healthy operation had been kept free of all
limitations to flourish and flower inside the Government as well as outside it.
Petition
under Article 184(3) of the Constitution of Pakistan was competent not only
because Fundamental Right 17 was directly involved but also because the first
part of Article 14 of the Constitution stood violated by attributing subversion
to the ousted Prime Minister. Further, the Prime Minister was being prevented
by the President from extending the political activity of the Executive
Government of the Federation to the Federally Administered Tribal Areas. This
too amounted to violation of Fundamental Right 17(2).
Black’s
Law Dictionary and Miss Benazir Bhutto v. Federation of Pakistan and another P
L D 1988 SC 416 rer.
Per SAUad Ali Shah, J. Contra‑‑‑
Perusal
of the Constitution shows that there are several other provisions which govern
the continuation of the Government. Article 91(2A) envisages that the President
shall invite the member of the National Assembly to be the Prime Minister who
commands the confidence of the majority of the members and such person is to be
given oath as is provided in clause (3) of the same Article. Clause (5) of
Article 91 provides that the Prime Minister, who does not command confidence of
the majority shall be required to obtain vote of confidence from the Assembly.
Article 58(l) of the Constitution provides that the President shall dissolve
the National Assembly if so advised by the Prime Minister. Clause (2) of this
Article empowers the President to dissolve the National Assembly in his
discretion. If provisions of the Constitution mentioned above, are read
conjointly, it would appear that Article 17 gives right to form or be a ,
member of political party subject to any reasonable restrictions imposed by law
but does not give any further Fundamental Right to that political party to
continue the Government till its tenure has tome to an end.
Article
17(2) of the Constitution does not give Fundamental Right to the political
party to conclude its tenure of office. Further I do not agree that by
mentioning subversion of the Constitution in the order of dissolution,
Fundamental Right of the Prime Minister under Article 14 of the Constitution is
violated nor there is any justification to conclude that the Prime Minister was
being prevented by the President from extending political activity of the
executive Government of Federation to the Federally Administered Tribal Areas.
Ms.
Benazir Bhutto v. Federation of
In
the instant case Article 184(3) cannot be invoked for the reason that impugned
action of dissolution of the Assembly is not in conflict with Article 17(2) as
there is no Fundamental Right available to the petitioner to continue the
Government till the tenure comes to an end because that subject is covered by
other provisions of the Constitution. Article 17(2) which guarantees
Fundamental Right mentions such right to the extent of being a member of a
political party subject to any reasonable restrictions imposed by law and
nothing more than that. To continue in power for rive years till the end of
tenure is a political wish and to be able to participate in political process,
is governed by other Articles of the Constitution and not by Article 17(2).
Article 17(2) mentions political party which has bundle of rights including
political rights which are different from Fundamental Rights which are
enumerated in the Constitution.
fundamental
Rights are specifically mentioned in the Constitution Fundamental Right can be deemed to be there
by implication if not mentioned specifically. If legislature wants to add any Fundamental Right it
can do so expressly. There is no dispute about
the fact that Article 2A containing Objectives Resolution now is
substantial part of the Constitution and this Article is now as good as any
other Article of the Constitution and at
par with it.
Petition
under Article 184(3) cannot be riled straight away in the Supreme Court as
Article 184(3) can be invoked only when question of public importance is
involved with reference to the enforcement of any of Fundamental Rights and in
the instant case petitioner cannot claim Fundamental Right under Article 17(2)
to continue Government till its tenure comes to an end. Proper remedy for the petitioner
was to rile the petition before the High Court under Article 199 of the
Constitution and seek relief as contemplated therein challenging the validity
of order of dissolution passed by the President.
Begum
Nusr at Bhutto v. Chief of Army Staff etc. PLD 1977 SC 657 and Ms. Benazir
Bhutto v. Fcd&ration of Pakistan PLD 1988 SC 416 rer.
The
expression ‘political justice’ is very significant and it has been placed in
the category of Fundamental Rights.
Political parties have become a subject‑matter of a Fundamental Right in
consonance with the said provision in the Objectives Resolution. Even otherwise, speaking broadly, our
Constitution is a Federal Constitution based on the model of Parliamentary form
of representative Government prevalent in
Reference
to “political justice” is academic in nature because Fundamental Right is
already mentioned in Article 17(2) which is right to form or be a member of
political party.
In
the instant case a petition under Article 184(3) of the Constitution directly
filed in the Supreme Court is not maintainable and for that purpose resort
should have been* made to the High Court.
The
most important and pivotal point is the making of speech by the Prime Minister
and its tenor and purport which is not disputed but on the contrary is being
defended vociferously on the ground that the Prime Minister acted within his
powers in the Constitution and the President had no business to advise the
Prime Minister in, the Parliamentary form of Government. The tenor of the
speech of the Prime Minister shows clearly that he endeavoured to take into
confidence the Nation on the point that the situation had arisen in which the
Government of Federation could not be carried on in accordance with the
provisions of the Constitution and for such situation he was not to be blamed
and the blame in its entirety lay on the door of the Presidency and the person
of the President who colluded with elements inside the Ruling Party and
outside, who were hell‑bent to destabilise the Government,
The
question of apportionment of blame for creating such a situation is relegated
in the background and the fact that such a situation is created bringing about
deadlock and stalemate in the working relationship of two pillars of the
Government of Federation had become a fait accompli which enabled the President
to exercise his discretionary power under Article 58(2)(b).
It
is clear that mandatory requirement of Article 154 was not followed and C.C.I.
Was not called for to formulate and regulate policy giving opportunity to the
Provinces to participate in the proceedings at such important stage.
‑in
respect of policy of privatisation, constitutional requirements of provisions
regarding CCI and NEC were not followed and Provinces were not given
opportunity to participate in the formulation of such policies. It also appears
that on the ground of mal‑administration, corruption and nepotism of the
Federal Government there was sufficient material before the President which was
considered in support of the ground of dissolution.
There
is no reason to justify departure from the guidelines laid down in the cases of
Haji Saifullah Khan and Khawaja Ahmad Tariq Rahim for consideration of material
in support of grounds of dissolution. There is no difference in the material
produced in support of grounds of dissolution in the case of Tariq Rahim and in
the present case. The present line of reasoning in the majority judgment can be
accepted only when positive assertion is made that case of Khawaja Ahmed Tariq
Rahim was wrongly decided.
Supreme
Court can examine the reasons and material in support of grounds of dissolution
in order to find out whether it has any rational nexus with the satisfaction of
the President.
S.R.
Bonimai and others v. The Union of India and others AIR 1990 Karnataka 5; Mrs.
Sajida Bcgum and others v. Union of India and others AIR 1977 SC 1301; A.K. Roy
v. Union of India and ‘ another AIR 1982 SC 710; Capt. Kanwaijit Singh v. Union
of India AIR I(Y)l Pb. and Har. 54; The State v. Ziaur‑Rahman and others
PLD 1973 SC 49; Fauji Foundation and another v. Shamimur Rchman PLD 1983 SC 457
and Dilip Kumar Sharma and others v. State of Madh. Pra. AIR 1976.SC 133 rer.
Decision
of the Court should be strictly in accordance with law and not to please the
nation. What may please the nation may turn out to be against the letter and
spirit of the law and the Constitution.
Per Saad Saood Jan, J.; SaJJud All
Shah, J. Contra.‑‑‑
(oo) Constitution of
‑‑‑‑
Art.175(2) ‑‑‑ Expression “jurisdiction” in Art.175(2),
meaning ‑‑‑ Term ‘Jurisdiction” is defined to be the power of
the Court to hear and determine a cause and exercise judicial power in relation
to it ‑‑‑ No Court shall have any jurisdiction save as is or
may be conferred on it by the Constitution or by or under any law. 1p. 6411 A
Chief Secretary v. Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112
(pp) Constitution or
‑‑‑‑Art.58(2)(b)
‑‑‑ Preconditions for the exercise of the power by the
President under Art.58(2)(b).
The
most important precondition laid down in Article 58(2)(b) for its exercise is
that circumstances must exist which clearly indicate that the Government of the
Federation cannot be carried on in accordance with the provisions of the
Constitution. The word ‘cannot’ as occurring in the clause brings in not only
an element of impossibility but also that of permanence in its construction and
thus the President can exercise his power thereunder only i there is material
before him showing that the affairs of the State have come to such a stage that
it is, no longer possible for the Government to function except by violating
the Constitution.
Once
the President forms an opinion that the Government of the Federation cannot be
carried on in accordance with the Constitution he has just no option but to
place the matter before the electorate, who are the political sovereign under
the Constitution, to re‑exercise their choice with regard to the
composition of the Government. The Constitution does not provide any other way
out to the President for it is a parliamentary system of Government and except
in some specified matters the President has to act on the advice of the Prime
Minister in the performance of his functions irrespective of whether the latter
is an elected one or merely his own nominee under Article 48(5)(b) of the
Constitution.
Once
the President is satisfied that the Government of the Federation cannot
function in accordance with the Constitution he has no option but to place the
matter before, i1he political sovereign of the country.
Under
the system the Government of the Federation represents the majority of the
members of the National Assembly and it cannot survive without their support.
The Constitutional crisis or an impasse does not ordinarily develop overnight.
If the majority of the members do not take remedial steps in time till the
Constitutional stalemate actually occurs, the members can only blame themselves
in the event the President intervenes to save the situation. Apart from that,
dissolution of the Parliament is a normal incident of parliamentary democracy
and no member can claim that he must be heard before dissolution.
Federation
of
(qq)
Constitution of
‑‑‑‑
Arts.58(2)(b) & 54(3)‑‑‑President can exercise power
under Art..58(2)(b) when the National Assembly is in session in pursuance of
the requisition of the members under Art.54(3)‑‑‑Dissolution
of National Assembly under Art.58(2) and summoning and prorogation of National
Assembly under Art.54(3) are entirely different matters ‑‑‑
Summoning of National Assembly by Speaker under Art.54(3) does not operate as
clog on the power of President under Art.58(2)(b).
(rr)
Constitution of
‑‑‑‑
Art.58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
vide Order dated 18‑4‑1993 ‑‑‑ Grounds mentioned
in the said Order, could not at all lead to the conclusion that the Government
of the Federation could not be carried on in accordance with the Constitution
and thus did not furnish an acceptable basis for the exercise of the
discretionary power vested in the President under Art.58(2)(b) ‑‑‑
None of these grounds either by itself or in conjunction with others fulfilled
the preconditions for the exerciser of the power under Art.58(2)(b).
Adegbenro
v. Akintola and another (1963) 3 All ER 544 ref.
As
to the maintainability of petition under
Art.184(3) of the Constitution of Pakistan on the ground of violation of Fundamental Right guaranteed
under Art.17(2) of the Constitution and elaboration of expression “Political
justice” as contained in the Objectives Resolution ‑‑‑
[Minority view].
To
invoke the jurisdiction of this Court under clause (3) of Article 184 it must
be shown that the action complained against violates a Fundamental Right as set
out in Chapter 1 of Part 11 either directly or transgresses the field in which
the said right can reasonably be taken to be operative.
A
perusal of Article 17(2) will show that the Fundamental Right contained therein
has a somewhat limited scope inasmuch as it relates to the formation and
membership of political parties. Thus, it no doubt gives freedom to the
citizens to form political parties, enjoy the membership of the parties of
their choice and by extension. of the said right to take part in all political
activities; but then this Article was never intended to be a complete charter
of all political rights. The content of the right which it guarantees is
clearly delineated by the terms in which it is expressed and it is doubtful whether even by rule of
progressive interpretation its scope can be extended to guaranteeing the right
to the membership of legislative bodies or to the formation of the Government
of the day.
Article
17(2) is not a check against all violations of the Constitution the terms in
which it is expressed set out the content of the right guaranteed by it; it
relates to the formation, membership and legitimate functioning of the
political parties. It does not concern itself with the rights of the citizens
when they sit as members of a legislative body. The term of the National
Assembly, its constitution and the manner of its dissolution arc regulated by
other Articles of the Constitution; Article 17(2) has nothing to do with these
matters. If the National Assembly is dissolved illegally it will be violation
of Articles 52 and 58. One cannot complain that by the dissolution of the
Assembly his right under Article 17(2) has been impinged upon. He will no doubt
have a remedy under Article 199 of the Constitution before the High Court; the
jurisdiction conferred on this Court by Article 184(3) is, by the language in
which it is couched, far too restricted to cover the petition.
The
expression ‘political justice’ represents an idea with myriad of facets and for
that very reason does not admit of a precise definition. Broadly speaking,
every time a group or a class or even an individual is deprived of a right or a
privilege which is available to the majority of others similarly placed or is
discriminated against, one immediately starts thinking in terms of political
justice. So far as the Objectives Resolution is concerned it does not by itself
add any new independent fundamental right in Chapter I of Part II of the
Constitution so as to bring its violation within the compass of the
jurisdiction conferred on this Court by Article 184(3).
Political
justice has innumerable dimensions. Its theme runs throughout the Constitution.
It is not confined to any particular portion thereof‑, in fact, the
various Articles of the Constitution receive inspiration from or reflect one or
the other aspect of political justice. There seems little doubt that the
paramount consideration before the Constitution‑makers was that no
section of the citizenry no matter how small it might be, should be deprived of
equal participation in the national life and no one should feel that he has not
had a fair deal.
The
question was whether Supreme Court had the jurisdiction t entertain the
petition directly; for that one has to show that there had been violation of
his right as included in Chapter I of Part 11 of the Constitution. The mere
assertion that the petitioner was seeking political justice was not sufficient
in that regard. On the other hand, the dissolution of the National Assembly or
the dismissal of the cabinet arc not matters which fall within the field in
which Article 17(2) operates. The action of the President emanates from the
provisions of Article 58(2)(b). Whether this action is legal or not has to be
examined on the basis of the language of this clause and the relevancy of the
material upon which it was stated to have been based. It has nothing to do with
the violation of Article 17(2) for, the Fundamental Right incorporated in this
clause does not extend to guaranteeing the duration of the membership of the
National Assembly. Direct petition is not covered by clause (3) of Article 184
of the Constitution and as such it ought not to have been riled directly in the
Supreme Court.
Benazir
Bhutto v. Federation of Pakistan PLD 1988 SC 416 and PLD 1989 SC 00
distinguished.
Benazir
Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Hakam Khan v. Government
of Pakistan PLD 1(Y)2 SC 595 rer.
Per
Ajmul Mian, J.; Sullud All Sliali, J. Contra...
(ss)
Constitution of
‑‑‑‑ Art. 184(3)‑‘ interpretation, scope and application
of Art.184(3) of the Constitution.
A
perusal of Article 184(3) of the Constitution of Pakistan (1973), indicates
that without prejudice to the provisions of Article 199 of the Constitution,
which confers constitutional jurisdiction on the High Courts, the Supreme Court
has been empowered to make an order of the nature mentioned in the above
Article 191) provided the following two conditions are fulfilled:‑‑‑
(i)
a question of public importance is involved;
with
reference to the enforcement of any of the Fundamental Rights guaranteed by
Chapter 1, Part, 11 of the Constitution, i.e. Articles 8 to 28.
(tt)
Constitution of
....
Art. 2A ‑‑‑ Object of adopting the Objectives Resolution ‑‑‑
Fact that Objectives Resolution has been incorporated as a substantive part of
the Constitution by virtue of Art.2A, does not justify reading into any
additional Fundamental Rights in Chapter pertaining to Fundamental Rights
contained in the Constitution ‑‑‑ Courts, however, while
construing Fundamental Rights have to keep in view the Objectives Resolution
and to place widest possible construction as to advance the goals
targeted/envisaged therein.
Factum that the Objectives
Resolution has been incorporated as a substantive part of the Constitution by
virtue of Article 2A, does not justify reading into any additional Fundamental
Rights in the Chapter pertaining to Fundamental Rights contained in the
Constitution. The object of adopting the Objectives Resolution in 1949, was to
provide guideline and to serve as a beacon light to the framers of Constitution
but it was never intended or designed to be enforced as Fundamental Rights. The
framers of the Constitution have in fact acted upon, on the Objectives
Resolution by incorporating the various Fundamental Rights contained in
Articles 8 to 27,
which
cover Political, Social and Economic Justice, to add to the above list any
other undamental right on the basis of the Objectives Resolution is the
function of the Parliament and not of the Court. However, the Courts while
construing Fundamental Rights should keep in view the Objectives Resolution and
should place widest possible construction as to advance the goals
targeted/envisaged therein.
Hakim
Khan and 3 others v. Government of Pakistan PLD )92 SC
(uu)
Constitution of
595
ref.
‑‑‑‑
Part 11, Chap. 1 ‑‑‑ Fundamental Rights ‑‑‑
Courts, while construing Fundamental Rights have to keep in view Objectives
Resolution and place widest possible’ construction as to advance the goals
targeted/envisaged therein.
Hakim
Khan and 3 others v. Government of Pakistan PLD 1992 SC
(vv)
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art. 17‑‑“Political rights” and “Political justice” are inter
linked with each other ‑‑‑ Guarantees ensured under “political
rights” and “political justice” detailed ‑‑‑ Need for expanding
the same through legislation and judicial creativity emphasised.
The
political rights and the political justice are inter linked with each other.
The former encompasses the right to participate directly or indirectly in the
establishment or management of the Government. These rights are delineated and
demarcated in the Constitution of every country; whereas the latter caters for
providing in the Constitution equal rights to engage and participate in the
public affairs. It envisages that the Constitution should guarantee equal
liberty and provide an efficient and honest machinery/mechanism through which
people can elect their representativ6s in a manner which should ensure that‑‑‑
(i)
each vote has approximately the same weight in determining the outcome of the
election;
(ii)
people similarly endowed and motivated should have roughly the same chance of
attaining political authority irrespective of their economic and social class;
(iii)
the majority should get into power.
The
Fundamental Rights contained in the Constitution referred to herein above
provide to some extent for the Political Rights
and the Political Justice. However, there is a lot of scope for improving
upon and expanding the same through legislation and the judicial creativity.
Justice
and Natural Social and Political by Dr. Chatcrvedi; Black’s Law Dictionary, 5th
Edn.; Words and Phrases (Permanent Edition ‑ West Publishing Co.), Vol.
32A; A Theory of Justice by John Rawls and Miss Benazir Bhutto v. Federation of
Pakistan and others PLD 1988 SC 416 ref.
(ww) Constitution of
‑‑‑‑
Art. 17‑‑‑Scope of Art.17 ‑‑‑ Forming of a
political party necessarily implies the carrying on of all its activities as
otherwise the formation itself would be of no consequence.
A
perusal of Article 17 of the Constitution of Pakistan (1973) indicates that
clause (1) thereof confers on every citizen the right to form associations or
unions, subject to any reasonable restrictions imposed by law in the interest
of sovereignty or integrity of
The
forming of a political party necessarily implies the carrying on of all its
activities as otherwise the formation itself would be of no consequence. [p.
0691 F
SC
416 ref.
Miss
Benazir Bhutto v. Federation of Pakistan and others PLD 1988
(xx)
Constitution or
‑‑‑‑
Art. 184(3) ‑‑‑ Article 184(3) of the Constitution provides
abundant scope for the enforcement of the Fundamental Rights of an individual
or a group or class of persons in the event of their infraction ‑‑‑
Supreme Court has to lay down the contours generally in order to regulate the
proceedings of group or class of actions from case to case.
Miss
Benazir Bhutto v. Federation of Pakistan and others PLD 1988
(yy) Constitution of
‑‑‑‑ Arts. 17(2) &
58(2)(b) ‑‑‑ Dissolution of National Assembly and dismissal
of Prime Minister and the Cabinet by the President under Art.58(2)(b) ‑‑‑
Right to form a political party and to be a member of a political party
enshrined in Art.17(2) does not culminate upon winning of the elections but it.
is a continuous political process which includes the right of a person to
remain as a
member
of the National Assembly or as a Prime Minister till the lifetime of the
Assembly or the tenure of the Prime Minister ship is terminated lawfully in
accordance with the provisions of the Constitution ‑‑‑ Member
of National Assembly or Prime Minister, therefore, can claim that he should be
allowed to function so long as the life of the Assembly or his tenure is not
terminated in
accordance
with the Constitution ‑‑‑ Any infraction of such right
without legal basis will inter alia attract Art.17(2) of the Constitution
besides being violative of the
relevant Constitutional or statutory provision ‑‑‑
Dissolution of National Assembly and dismissal of Prime Minister and the
Cabinet being violative of the provisions
of the Constitution, Art.17(2) was attracted as admittedly the ousted Prime
Minister was the leader of a Political Party which commanded the majority in the National Assembly.
The
right to form a political party and to be a member of a political party
enshrined in clause (2) of Article 17 does not culminate upon winning of the
elections but it is a continuous political process which includes the right of
the petitioner to remain as a member of the National assembly or as a Prime
Minister till the time the life of the Assembly or the tenure of the Prime
Minister ship is terminated lawfully in accordance with the provisions of the
Constitution. It is true that nobody can claim any vested right to remain a
member of the National Assembly or to be a Prime Minister for the period of
five years but a Member of the National Assembly or a Primer Minister can claim
that he should be allowed to function so long as the life of the Assembly or
his tenure is not terminated in accordance with the provisions of the ‘Constitution.
Any infraction of the above right without legal basis will inter alia attract
Article 17 (2) of the Constitution besides being violative of the relevant
Constitutional or statutory provision. Since the impugn6d Presidential Order of
18th April, 1993, dissolving the National Assembly and dismissing the Prime
Minister and the Cabinet does not fall, within the ambit of Article 58 (2) (b)
of the Constitution, the termination of the life of the Assembly and the tenure
of the petitioner as the Prime Minister besides being violative of the above
provision of the Constitution, will also attract Article 17(2) of the
Constitution, as admittedly the petitioner was the leader of a Political party
which commanded the majority in the National Assembly.
Kh.
Ahmad Tariq Rahim v. Federation of
Reference
by his Excellency the Governor‑General PLD 1955 FC 435; State of
Rajasthan v. Union of India AIR 1977 SC 1361; Capt. Kanwaijit Singh v. Union of
Inida AIR 1991 Punj. 54 and All India Bank Employees’ Association v. The
National Industrial Tribunal (Bank Disputes) and others AIR 1962 SC 171 distinguished.
There
is a marked distinction between interpreting a constitutional provision
containing a Fundamental Right and a provision of an ordinary statute. A
constitutional provision containing a Fundamental Right is a permanent
provision intended to cater for all times to come and, therefore, while
interpreting such a provision the approach of the Court should be dynamic,
progressive and liberal keeping in view ideals of the people, socioeconomic
and politico‑cultural values (which in Pakistan are enshrined in the
Objectives Resolution) so as to extend the benefit of the same to the maximum
possible. This is also called judicial activism or judicial creativity. In
other words, the role of the Courts is to expand the scope of such a provision
and not to extenuate the same. The construction placed on Article 17 of the
Constitution herein above is in consonance with the above rules of
construction.
Olga
Tellis and others v. Bombay Municipal Corporation and others AIR 1986 SC 180;
State of Himachal Pradesh and another v. Umcd Ram Sharma and others AIR 1986 SC
847; IA. Sharwani and others v. Government of
(zz)
Interpretation of Constitution‑‑‑
‑‑‑
Fundamental Rights guaranteed in the Constitution ‑‑‑ While
interpreting Fundamental Rights the approach of the Court should be dynamic,
progressive and liberal keeping in view ideals of the people, socio‑economic
and politico-cultural values which in
There
is a marked distinction between interpreting a constitutional provision
containing a Fundamental Right and a provision of an ordinary statute. A
constitutional provision containing Fundamental Right is a permanent provision
intended to cater for all times to come and, therefore, while interpreting such
a provision the approach of the Court should be dynamic, progressive and
liberal keeping in view idea of the people, socioeconomic and politico‑cultural
values (which in Pakistan are enshrined in the Objectives Resolution) so as to
extend the benefit of the same to the maximum possible. This is also called
judicial activism or judicial creativity. In other words, the role of the
Courts is to expand the scope of such a provision and not to extenuate the
same.
(aaa) Constitution of
‑‑‑‑
Art. 184(3)‑~‑Direct petition under Art.184(3) of the Constitution
could be filed before the Supreme Court if a petitioner could demonstrate any
infraction of any of the Fundamental Rights.
,
Federation of
(bbb) Constitution of
‑‑‑‑
Arts. 58(2)(h) & 54(3)‑‑‑Power of the President to
dissolve the National Assembly under Art.58(2)(b) was not affected if the
Speaker had already prorogued the National Assembly under Art.54(3) of the
Constitution ‑‑‑ Once Parliament has been formally opened, it
can be dissolved whether it is in session or not. the power to prorogue
National Assembly is entirely distinct from the power to dissolve and,
therefore, the factum that under clause (3) of Article 54 once the Speaker
summons the National Assembly upon requisition signed by not less than one‑fourth
of the total membership of the National Assembly, he can only prorogue and not
any other authority, does not, in any way, control or curtail the power
conferred on the President under clause (2) (b) of Article 58 of the
Constitution. If the National Assembly can be dissolved while in session, there
seems to be no legal basis as to why it cannot be dissolved when it is not in
session but is summoned upon requisition under clause (3) of Article 54 of the
Constitution. [p. 67611
Theory
and Practice of Dissolution of Parliament compiled by Cambridge and Studies in International and
Comparative Law edited by C.J. Harrison and R.Y. Jennings ref.
(ccc)
Constitution of
‑‑‑‑
Art. 58 ‑‑‑ Interpretation and scope of Art.58 ‑‑‑
Power of President to dissolve National Assembly under Art.58(2)(b) ‑‑‑
Scope ‑‑‑ Dissolution of National Assembly under Art.58(2)(b)
is inter linked with an appeal to the electorate ‑‑‑ Court
will be entering into the domain of speculations, surmises and conjectures if
it were to examine the question, whether an appeal to the electorate will
achieve the desired result which is not warranted by the language of Art. 58.
A
perusal of Article 58, Constitution of Pakistan shows that under clause (1), it
is mandatory on the part of the President to dissolve the National Tariq Rahim
v. Federation of Pakistan PLD 1992 SC 646 and Federation of Pakistan through
Secretary, Ministry of Law, Justice and Parliamentary Affairs~ Islamabad and
others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723 ref.
“Inter‑Parliamentary
Union” Parliaments of the World (A Reference Compendium)’by Valentine Herman
and Francoise Mendel and the Theory and Practice of Dissolution of Parliaments,
a Comparative Study with Special Reference to the United Kingdom and Greeks by B.S. Markesinis distinguished.
(eee)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and call
to the electorate ‑‑‑ Effect ‑‑‑ Frequent
dissolution of Assembly without justifiable reason affects adversely the
democratic process, which results into instability in the country adversely
affecting economic growth.
Indeed
holding of a general election regularly in a democratic setup/polity is an
essential element. It inculcates political maturity among the masses, brings
political stability in the democratic institutions and gives the masses sense
of participation, in the affairs of the State and generates in them sense of
responsibility and patriotism. But frequent dissolution of an assembly without
justifiable reason affects adversely the above democratic process, which
results into instability in the country adversely affecting economic growth.
Introduction
to the Study of the Law of the Constitution by A.V. Dicey, Tenth Edn. ref.
(M) Constitution of
‑‑‑‑
Preamble ‑‑‑ Sovereignty ‑‑‑ Marked
distinction exists between the Islamic concept of sovereignty and modern
concept of sovereignty.
Islamic
Jurisprudence and International Perspective by C.G. Weeramantry and Hakim Khan
and 3 others v. Government of Pakistan PLD 1992 SC 595 rer.
(ggg)
Constitution of
Assembly
if so advised by the Prime Minister and unless sooner dissolved, it shall stand
dissolved automatically at the expiration of f9rty‑eight hours after the
Prime Minister has so advised. However, explanation to the above clause puts
clog on the above right of the Prime Minister by providing that he cannot
tender above advice if notice of a resolution for a vote of no‑confidence
has been given against him.
Clause
(2) provides that notwithstanding anything contained in clause (2) of Article
48 of the Constitution, the President may dissolve the National Assembly in his
discretion where in his opinion‑‑‑
(a)
a vote of no‑confidence has been passed against the Prime Minister and in
the opinion of the President no other member of the National Assembly is likely
to command the confidence of the majority of the members;
(b)
the President may also dissolve the National Assembly in his discretion when in
his opinion a situation has arisen in which the Government of the Federation
cannot be carried on in accordance with the provisions of the Constitution and
an appeal to the electorate is necessary.
Sub‑clause
(b) of clause (;) of Article 58 of the Constitution is pertinent once the
President forms the opinion objectively on the question that a situation has
arisen in which the Government of the Federation cannot be carried on in
accordance with the provisions of the Constitution on the basis of the material
having nexus with the above reason, he enters into the domain of discretion and
it is for him to decide, as to whether the proper action would be the
dissolution of the Assembly or some other action warranted by some other
provisions of the Constitution or law
The
dissolution of an Assembly is inter linked with an appeal to the electorate. If
an Assembly is to be, dissolved as a corollary, an appeal to the electorate is
to be made. Courts will be entering into the domain of speculations, surmises
and conjectures if they were to examine the question, whether an appeal to the
electorate, will achieve the desired result ‘which is not warranted by the
language employed in the above provision of the Constitution. One cannot
predict with certainty, what would be the outcome of an appeal to the
electorate.
Kh.
Ahmad Tariq Rahim~ v. Federation of
(ddd) Constitution or
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Expression “situation has arisen in which
the Government cannot be carried on in accordance with the provisions of the
Constitution” occurring in Art.58(2)(b) ‑‑‑ Interpretation.
Haji
Muhammad Saifullath Khan’s case PLD 1989 SC 166; Ahmad
‑‑‑‑
Art. 64(l) ‑‑‑ Resignations of Members of National Assembly ‑‑‑
Sub mission of such resignations to the President of Pakistan had no legal
effect as they were not handed over to the Speaker in terms of Art.64(1) of the
Constitution.
A.K.
Fazlul Quader Chaudhury v. Shahnawaz and others PLD 1966 SC 105 and Mirza Tahir
Beg v. Syed Kausar Ali Shah and others PLD 1976 SC 504 ref.
(hhh)
constitution of
‑‑‑‑ Art. 58(2)(b) ‑‑‑ Dissolution of National
Assembly and dismissal of Prime Minister and the Cabinet by the President under
Art.58(2)(b) ‑‑‑ Ground that Members of National Assembly
submitted resignations to achieve the object of ousting the Prime Minister’s
Government and dissolution of Assembly was foreign to the grounds mentioned in
Art.58(2)(b) of the Constitution ‑‑‑ What cannot be achieved
directly cannot be achieved indirectly by pressing into service Art.58(2)(b) of
the Constitution.
The
object of submission of the above resignations to the President was to get the
Prime Minister’s Government ousted and in order to achieve the above object,
the Assembly was to be dissolved. The above object is foreign to the ground
mentioned in sub‑clause (b) of clause (2) of Article 58 of the
Constitution as the facturn that 88 MNAs had submitted resignations to the
President instead of to the Speaker, would not show that the Assembly lost the
mandate of the people or that a situation had arisen in which the Federation
could not be carried on in accordance with the provisions of the Constitution
What
cannot be achieved directly cannot be achieved indirectly by pressing into
service sub‑clause (b) of clause (2) of Article 58 of the Constitution.
In this regard, it may be pertinent to mention that under clause (5) of Article
91 of the Constitution, it has been provided that the Prime Minister shall hold
the office during the pleasure of the President but this pleasure is controlled
by providing therein that the President shall not withdraw his pleasure under
this clause unless he is satisfied that the Prime Minister does not command the
confidence of majority of the members of the National Assembly in which case he
shall summon the National Assembly and require the Prime Minister to obtain a
vote of confidence from the Assembly. If the Prime Minister fails to obtain . a
vote of confidence, the President is entitled to withdraw his pleasure by
dismissing the Cabinet and the Prime Minister. Reference may also be made to
clause (1) 6f Article 95 of the Constitution which provides that a resolution
for a vote of no‑confidence moved by not less. than 20 per centum of the
total membership of the National Assembly may be passed against the Prime
Minister by the National Assembly. Whereas sub‑clause (a) of clause (2)
of Article 58 of the Constitution empowers the President to dissolve the
Assembly in his discretion if a vote of no confidence having been passed
against the Prime Minister, no other member of the National Assembly is likely
to command the confidence of the majority of the members of the National
Assembly. This is to be read with clause
(5) of Article 48 which empowers the President upon dissolving the National
Assembly either under sub‑clause (a) or sub‑clause (b) of clause
(2) of Article 58 of the Constitution to‑‑‑
(a)
. appoint a date not later than 90 days from the date of dissolution for
hold7mg of general elections to the Assembly; and
(b) appoint a Care‑taker Cabinet which.
includes Prime Minister.
There
seems to be no other provision under the Constitution, whereby a Prime Minister
commanding majority of the House can be removed or dismissed. The factum that
88 MNAs had submitted resignations with the above object had no nexus with the
ground mentioned in sub‑clause (b) of clause (2) of Article 58 of the
Constitution. Even if the above 88 resignations would have been submitted to
the Speaker, that would not have been sufficient to conclude that the situation
had arisen in which the Government of the Federation could not be carried on in
accordance with the provisions of the Constitution as the law provides the
requisite provision for bye‑elections for filling in such vacancies.
The
persons desirous to achieve the ouster of a Government commanding majority in
the National Assembly cannot be allowed to achieve the above object by adopting
the above mechanism instead of defeating the( Government through no‑confidence
votes. The intention of the above MNA to submit their resignations was to oust
the Government which command majority and to get into power through this
indirect means, which fact stands established from the factum that Mr. Mir
Balakh Sher Mazari was inducted as the Care‑taker Prime Minister and the
Ministers who had resigned from the petitioner’s Cabinet were taken as the Care‑taker
Ministers besides taking majority of the MNAs who submitted their resignations
as Care‑taker Ministers in the Care‑taker Cabinet.
Adegbcrno
v. Akintola and another ‘(1963) 3 All ER 544
(iii)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Exercise of powers under Art.58(2)(b) by
the President‑‑ Conditions ‑‑‑ Article 58(2)(b)
was not intended and designed to be pressed into service at the behest of the
elements hostile to the Government in power to oust it though it may command
majority in the National Assembly ‑‑‑ If the exercise ‘ of
the power is tainted with personal likes or dislikes, the same shall stand
vitiated.
Under
Article 41 of the Constitution, the President is the Head of the State and
represents the unity of the Republic. His position is of a non‑partisan
person. Article 58 (2) (b) of the Constitution was not intended and designed to
be pressed into service at the behest of the elements hostile to the Government
m power to oust it though it may command majority in the National Assembly The
power under the above provision though discretionary, is to be exercised
sparingly, independently, honestly, fairly and reasonably without any bias and
ill‑will. If the exercise of the above power is tainted with personal
likes or dislikes, the same shall stand vitiated. Furthermore, the above
provision can be pressed into service when the machinery of Government is
broken down
completely
and its authority is eroded and that it does not concern with the pace of the
progress, the shade of the quality or the degree of the performance or the
quantum of achievement.
(W)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the ground of a speech by the Prime Minister ‑‑‑
Held, though the launching of personal attack by the Prime Minister was
not warranted and desirable, but simpliciter, the same could not have furnished
a ground to press into service Art.58(2)(b).
De
Smith and Brazier Constitutional and Administrative Law, Sixth Edn. by Rodney
Brazier and Constitutional and Administrative Law Text and Materials by David
Pollard and David Hughes rer.
(kkk) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
of the Constitution inter alia on the ground of Prime Minister’s alleged
inaction on internal and international problems ‑‑‑ Held,
such ground was not sustainable as it had no nexus to the reasons contained in
Art.58(2)(b) of the Constitution of Pakistan especially when there was no
inaction on the part of the petitioner of the nature warranting the dissolution
of National Assembly and dismissal of Cabinet.
(111) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Powers to dissolve the National Assembly
and to remove the Government by withdrawing the President’s pleasure are
governed by the Constitutional provisions and they are controlled by the
conditions contained therein.
Ahmad
Tariq Rahim v. Federation of
(mmm) Constitution of
Arts.
58(2)(b), 46 & 48 ‑‑‑ Status of President and the Prime
Minister under the Constitution.
Article
46 of the Constitution imposes the following Constitutional duties on the Prime
Minister:‑‑‑
(a)
to communicate to the President all decisions of the Cabinet relating
to
the administration of the affairs of the
federation and proposals for legislation;
(b) to furnish such information relating
to the administration of the affairs of the Federation and proposals for
legislation as the President may call for; and
(c) if the President so requires, to submit
for the consideration of the Cabinet any matter on which a decision has been
taken by the Prime Minister or a Minister but which has not been considered by
the Cabinet.
The
above Article is to be read with the I other provisions of the Constitution particularly
with clause (2) of Article 58 of the Constitution, which empowers the President
to dissolve the National Assembly and as a result of which the Cabinet is to
cease to function. The above powers cannot be exercised by the President unless
he keeps himself abreast of the day to day working of the
Government.
The cumulative effect of the various provisions of ‑the Constitution
relating to the President is that the President enjoys the right to be
consulted, the right to encourage and the right to warn. In order to discharge
his above constitutional duties, he is expected to be vigilant and to
keep
his eyes and cars open.
But
at the same time the Prime Minister’s status is neither inferior nor is less
important to that of the President. Except in the matters which are in the sole
domain of the President, the President cannot act without the advice of the
Prime Minister, whose advice is binding on him by virtue of Article 48(l) of
the Constitution. The Prime Minister, in fact, runs the Government and formulates
its policies in terms of the Constitution and is accountable to the Parliament.
He represents the will of the people. Prior to the Eighth Amendment the Prime
Minister was all in all, but after the above amendment the position has changed
considerably.
I
(nnn)
Constitution of
‑‑‑‑
Art. 154 ‑‑‑ Privatization of National units ‑‑‑
Federal Government should have brought the matter of privatization in respect
of the items covered by the Constitutional provisions before the C.C.l.
I
(ooo)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
of the Constitution inter alia on the ground that privatization in respect of
items covered by the Constitutional provisions was not put before the C.C.I.‑Held,
Privatization, which had the backing of law though should have been done
through C.C.I. but it could not be said that lapse by the Government was of the
nature, which hud jeopardised the very existence and subsistence of the
Federation warranting to press into service Art. &’R(2)(b) of the
Constitution of
(ppp)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the ground of mal‑administration, corruption and nepotism
etc.‑‑‑Held, such grounds were not sufficient independently
to warrant taking of action under Art.58(2)(b) of the Constitution and even not
of the nature which could have nexus to the reasons mentioned in that Article.
Ahmed
Tariq Rahim v. Federation of
(qqq)
Constitution or
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the gr6iund that functionaries, authorities and agencies of the
Government under the direction of Prime Minister and Ministers had unleashed a
reign of terror against the opponents etc.‑‑‑Held, such
grounds (allegations) having not been investigated into by any competent
agency/forum in order to determine truthfulness of the allegations besides
being not founded on any material worth consideration had no nexus with the
reasons mentioned in Art.58(2)(b) of the Constitution.
(rrr)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
of the Constitution inter alia on the ground that one or two ministers of the
Cabinet who resigned had raised a grievance to the effect that there was a
kitchen Cabinet for attending the important matters and they were not consulted‑‑Held,
such ministers might have individual grievance but the same could not be
made a ground for the purpose of Art.58(2)(b) of the Constitution as that had
no nexus with the reasons mentioned therein.
(sss)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the ground that Prime Minister had instructed the Cabinet
Ministers not to call on the President ‑‑‑ Held, such
a ground had no nexus to the reasons mentioned in Art.58(2)(b) 6f the
Constitution of Pakistan.
(ttt)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the ground of mere allegations of irregularities/favours in the
form of complaints or news items without ascertainment of their truthfulness ‑‑‑
Held, alleged irregularities/favours may be subject‑matter of appropriate
legal proceedings under the relevant law if they constituted breach of such
laws and were true, but such individual instances could not have nexus with the
grounds mentioned in Art.58(2)(b) of the Constitution ‑‑‑ If,
however, the corruption, nepotism and favourtism were on such a large scale,
that it resulted in the breakdown of Constitutional machinery completely, it
might have nexus with Art.58(2)(b).
(uuu) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the ground that Prime Minister had made excess grants from his
discretionary quota of Tameer‑e‑Watan Programme and extravagant
expenses were incurred by him on foreign trips and in organising seminars in
foreign countries for attracting foreign investments ‑‑‑ Held,
all the allegations were no more than contained in the newspapers without
any facts and figures as to excess amount wasted and therefore not worth
relying upon ‑‑‑ Such irregularities could form the basis for
some other appropriate proceedings under the appropriate laws if they
constituted breach of such laws and were true, but they could not furnish
foundation for passing order of dissolution under Art.58(2)(b).
(Yvv) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the ground of deficit financing and indebtedness both domestic
and international‑‑Held, such ground had no nexus with the reasons
mentioned in Art.58(2)(b) of the Constitution.
(www) Constitution Of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the ground of deviation in respect of induction of rive persons
in civil service‑‑Held, such deviation could not be
desirable for running an efficient civil service, but it could not cause
breakdown of the constitutional machinery so as to attract the action under
Art.58(2)(b).
(xxx) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter alia on the ground that wife of late Chief of Army Staff had alleged in a
Press Conference that her husband did not die natural death but was poisoned ‑‑‑
held, Government had constituted on the same day when Press Conference was held
a Commission comprising three Judges of the Supreme Court which had already
submitted its report and statement of Army Medical Personnel recorded by the
Commission and. reported in the Press in verbatim indicated that the late
General died natural death ‑‑‑ Such ground which had no basis
did not have any nexus with the conditions laid down in Art.58(2)(b) of the
Constitution.
(yyy)
Constitution of
‑‑‑‑
Art. 184(l) ‑‑‑ Suit can be filed in Supreme Court under
Art.184(l) in respect of any dispute between any two or more Governments.
(zzz)
Constitution of
‑‑‑‑ Arts. 154 & 155 ‑‑‑
Disputes between any two or more Governments can be brought before the Council
of Common Interests.
(aaaa)
Constitution of
‑‑‑‑
Arts. 184(3), 199 & 58(2)(b) ‑‑‑ Constitutional petition ‑‑‑
Grant of relief‑‑When can be denied ‑‑‑ If the
petitioner succeeds in establishing breach of a Fundamental Right, he is
entitled to the relief in exercise of Constitutional jurisdiction as a ‘matter
of course ‑‑‑ Where the order of dissolution of National
Assembly and dismissal of Prime Minister and the Cabinet was passed by the
President under Art.58(2)(b) which order did not fall within the ambit of
Art.58(2)(b) and there was no justifiable reason for that order, there was no
reason to deny the restoration of the National Assembly and the Cabinet with
the Prime Minister.
If a petitioner succeeds in
establishing breach of a fundamental right, he is entitled to the relief in
exercise of Constitutional jurisdiction as a matter of course. However, the
Court may decline relief if the grant of the same, instead of
advancing/fostering the cause of justice, would perpetuate injustice or where
the Court feels that it would not be just and proper, for example, in
the
President dissolves the National Assembly under Article 58(2)(b) of the
Constitution and before the Court decides the legality of such an order,
elections take place which may show that 70% voters have cast their votes
against the political party which was commanding the majority in the House
before its dissolution and that it could secure 2% or 3% only of the total
votes cast. In such an event, it will not be just and proper on the part of the
Court to defeat the will of the political sovereign by reinstating the
dissolved Assembly in spite of the above overwhelming verdict of the political
sovereign against it. The Courts are established for dispensing justice. So if
the grant of a relief for the enforcement of a fundamental right or any other
legal right instead of fostering/advancing cause of justice, will perpetuate
injustice, the Court will decline the same. in this regard, there seems to be
no distinction between the enforcement of a fundamental right and a legal right
under a general law.
In
the present case, the impugned order does not fall within the ambit of Article
58(2)(b) of the Constitution. There is no justifiable reason to deny the
restoration of the National Assembly and the Cabinet with the Prime Minister.
Capt.
Kanwaijit Singh v. Union of
Sunderial
Patwa v. The Union of India and others Misc. Petition No.~37 of 1993; Nawab
Syed, Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 SC
236; Wali Muhammad and others v. Sakhi Muhammad and others P L D 1974 SC 106;
Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others P
L D 1975 SC 331; Syed Nazim Ali etc. v. Syed Mustafa Ali etc. 1981 S C M R 231;
Muhammad Umar v. Member, Board of Revenue and 9 others 1985 S C M R 1591;
Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed lqbal and
another 1986 S C M R 1071; Zameer Ahmad and another v. Bashir Ahmad and others
1988 S C M R 516; Syed Ali ‑Shah v. Abdul Saghir Khan Sherwani and others
P L D 1990 SC 504; Inamur Rehman v. Federation of Pakistan and others 1992 S C
M R 563; Daryao and others v. The State of U.P. and others A I R 1961 SC 1457;
The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan P L D
1966 SC ‑286; Ram Singh and others v. The State of Delhi’ and another A I
R 1951 SC 270; Messrs Tilokchand Motichand and others v. H.B. Munshi,
Commissioner of Sales Tax, Bombay and another A I R 1970 SC 898 and Amrit Lai
Berry and others v. Collector of Central Excise Central Revenue and others A I
R 1975 SC 538 ref.
Per Muhammad Afzal Lone, J.; Sajjad Ali
Shah, J. (Contra)‑‑‑
(bbbb) Constitution of
‑‑‑‑
Art. 184(3) ‑‑‑ Scope and application of Art.184(3) of the
Constitution.
Article
184(3) of the Constitution of Pakistan pertains to original jurisdiction of the
Supreme Court and its object is to ensure the enforcement of fundamental rights
referred to therein. This provision is an edifice of democratic way of life and
manifestation of responsibility cast on Supreme Court as a protector and
guardian of the Constitution. The jurisdiction conferred by it is fairly wide
and the Court can make an order of the nature envisaged by Article 199, in a
case where a question of public importance, with reference to enforcement of
any fundamental right conferred by Chapter 1 of Part 11 of the Constitution is
involved. Article 184(3) is remedial in character and is conditioned by three
prerequisites, namely‑‑‑‑
(i)
There is a question of public importance.
(ii)
Such a question involves enforcement of fundamental right, and *
(iii) The
fundamental right sought to be enforced ‑ is conferred by
Chapter 1, Part 11 of the
Constitution.
(cccc)
Constitution of
‑‑‑‑
Art. 17 ‑‑‑ Interpretation, guidelines‑‑‑While
construing Art.17 approach of the Court should not be narrow and pedantic but ‘
elastic enough to march with the changing times and guided by the object for
which it was embodied in the Constitution ‑‑‑ Full import and
meaning of Art.17 must be gathered from other provisions such as Preamble of
the Constitution, Principles of Policy and the
Objectives
Resolution, which shed luster on the whole Constitution.
Bcnazir
Bhutto v. Federation of Pakistan PLD 1988 SC 416 reE
(dddd) Constitution of
‑‑‑‑
Art. 2A‑‑‑“Political justice” and “political rights”‑‑‑Concept
‑‑‑ Effective functioning of political system ‑‑‑
Essentials ‑‑‑ Principles of democracy as enunciated in Islam
are to be fully observed and true and fair elections and the existence of
political parties, is an essential adjunct of a functional democratic system of
Government.
In
every democratic set‑up in the world, the political parties compete for
the right to form a Government. It is the basic assumption of Parliamentary
democracy that the party winning a majority of scats in the House should have
complete control of Government. For democracy gives the majority the right to
rule. Constitutionally, this power admits of no impediment. In British politics
the “doctrine of mandate” signifies that the party which wins the general
election has the right to implement its programme. In fact it is true of every
country following parliamentary democracy. If a party attaining power fails to
give effect to its manifesto it may be accused of deluding the electorate in
catching the votes. For an effective functioning of a political system, the
dominant institutions catered thereby though geared by the idea of contemporary
social attitudes, must not be oblivious of moral and historical aspirations of
the nation. The reason being that’ neither constitutional principles nor political
attitudes can properly be appreciated without understanding their roots in the
historical experiences of the society. In this behalf the Objectives Resolution
(Art.2A) represents such attitudes, ethos, and values behind the Constitution.
The
expression “political justice” is very significant and it has been placed in
the category of fundamental rights. Political parties have become a subject‑matter
of a fundamental right in consonance with the Objectives Resolution. Even
otherwise, speaking broadly, the Constitution is a Federal Constitution based
on the model of Parliamentary form of representative Government prevalent in
Expression
“political rights” is defined as those rights which may be exercised in the
formation or administration of the Government . Rights of citizens established
or recognized by Constitutions which give them the power to participate
directly or indirectly in the establishment or administration of Government.
Benazir
Bhutto v. Federation of
A
Theory of Justice by John Rawals commented.
victims
of Politics by Kurt Glaser Stefan T. Possony, 1979 Edn., p.349 published by
Columbia University Press, New York; Philip Pettit, Professor of Philosophy in
University of Bradford in his work Judging Justice and David Lyons in his work
Ethics and the Rule of Law cited.
(eeee)
Constitution of
‑‑‑‑
Arts. 17 & 184(3) ‑‑‑ Political justice ‑‑‑
Concept ‑‑‑ Illegal and unconstitutional denial to run the
Government as long as one enjoyed the support of the majority in the House,
will be the denial of political justice, guaranteed by Art.17 of the
Constitution and petition under Art.184(3) of the Constitution will be
maintainable against such denial.
The
concept of political justice will also include the right to participate in
political decision‑making. Thus illegal and unconstitutional denial to
run the Government as long as one enjoyed the support of the majority in the
House, will be the denial of political justice, guaranteed by Article 17.
There
is no valid basis to sustain the objection to the maintainability of the
petition under Article 184(3) of the Constitution which on account of
infringement of Fundamental Right No.17 lies before Supreme Court.
A
Theory of Justice by.John Rawals commented.
Victims
Of Politics by Kurt Glaser Stefan T. Possony, 1979 Edn., p.349 published by
Columbia University Press, New York; Philip Pettit, Professor of Philosophy in
University of Bradford in his work Judging Justice and David Lyons in his work
Ethics and the Rule of Law cited.
(ffff) Constitution of
‑‑‑‑
Art. 64 ‑‑‑ Rules of Procedure and Conduct of Business in the
National Assembly, 1992, R.25 ‑‑‑ Resignation by member of
the Assembly in writing under the hand of the member concerned addressed and
delivered to the Speaker, if genuine and
tendered voluntarily is sift qua nor, for its effectiveness.
(gggg)
Constitution of
‑‑‑‑
Arts. 58(2)(b) & 64 ‑‑‑ Resignations of Members of
National Assembly addressed to the Speaker and delivered to the President who
did not pass on the same to the Speaker cannot be a ground available to the
President to take action under Art. 58(2)(b) of the Constitution.
In
the present case the letters of resignations were addressed to the Speaker,
except those tendered by the Ministers, which is 1he essential requirement of
Article 64. Conceivably, there was no legal or constitutional justification for
receipt and then retention th0rcof by the. President. If at all. these were
presented to the President in all fairness in adherence to the provision of the
Constitution he should have forwarded the same to the Speaker. Such a mode of
tendering the resignations and then retention thereof by the President is a
sheer perversion of the Constitution and no concomitant of the legitimate “pressure
politics” known to the Parliamentary system of Government. Encouraging of such
tactics may become an effective vehicle of blackmailing the party in power,
resulting in subversion of the parliamentary democracy in the country. Within
the ambit of Article 58(2)(b) this ground was not at all available.
From
press clippings an inference was justifiably sought to be drawn that the
President did not act impartially and rather extended an active cooperation to
the opposition and other dissatisfied elements, which was highly objectionable
and against the spirit of the Constitution.
Mirza
Tahir Beg v. Syed Kausar Ali Shah PLD 1976 SC 504 ref.
(hhhh)
Constitution of
‑‑‑‑
Art. 19‑‑‑“Freedom of expression”‑‑‑Right
of the citizenry to receive information can be spelt out from the “freedom of
expression” guaranteed by Art.19 subject to inhibitions specified therein and
such right must be preserved.
Party
Politics, Vol.11, p.17 by Sir Ivon Jennings and The People and the Party System
by Vernon Bogadanor ref.
(iiii) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Speech of the Prime Minister dated 17‑4‑1993
could not be made a lawful basis for dissolution of National Assembly under
Art.58(2)(b) by the President.
QW)
Constitution of
‑‑Art.
58(2)(b) ‑Objections to the Policies of the Government in Presidential
Order
dated 18‑4‑1993 dissolving the National Assembly under Art.58(2)(b)
of the Constitution having not been established, could not be made basis for
the said Order by the President.
(kkkk) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Two situations contemplated by Art.58(2)(b)
to dissolve the National Assembly by the President stated.
Article
58(2) contemplates two situations for dissolution of National Assembly at the
discretion of the President; firstly when a vote of no-confidence has been
passed against the Prime Minister and no other member of the National Assembly
is likely to command majority #of its members and secondly when the Government
of the Federation cannot be carried on in accordance with provisions of the
Constitution and an appeal to the electorate is necessary.
(1111)
Constitution of
‑‑‑‑
Arts. 193(l) & 48(l) ‑‑‑ President to act on advice‑‑‑Question
as to whether advice of Prime Minister is sine qua non for the validity of
appointment of Judges of the High Court required serious research. [p. 75510
M.D. Tahir v. Federal Government 1988 CLC 1.309 mentioned.
(mmmm) Constitution of
‑‑‑‑
Art. 91(l)(4) ‑‑‑ Parliamentary form of Government ‑‑‑
Salient features‑‑Collective ministerial responsibility to the
Parliament.
The
salient features of the parliamentary form of Government are that real
executive power is exercised by the Cabinet of the Ministers, with the Prime
Minister at its head. The Crown (President) acts on the advice of the Cabinet,
which is collectively responsible to the elected popular House.
Constitution
ordains a parliamentary system of Government with collective ministerial
responsibility to the Parliament.
Under
Article 91(4) the Cabinet, together with the Ministers of State is collectively
responsible to the National Assembly.
Theory
and Practice of Modern Government, pp. 953,954 ref.
(nnnn) Constitution of
The
compulsory nature of the principle of advice is quite obvious. The President is
bound to act on the advice of Prime Minister/Cabinet, commanding majority in
the House, except where he has discretion or exercises prerogative such as
under Article 94 and his satisfaction is secured
(Articles
232, 234, 235); if such satisfaction is borne out from the advice tendered to
him by the Prime Minister or the Cabinet.. Compliance with Article 48(l) by the
President is ensured by Articles 42 and 47. Under Article 42 he takes the oath
to perform his functions faithfully in accordance
with
the Constitution and further to preserve, protect. and defend the same. If he
misconducts or refuses to accept the advice, he can be impeached under Article
47 for violation of the Constitution.
The
concept of responsible Government visualize that the head of State himself can
do no wrong; he acts on the advice of his Ministers on whom the responsibility
for such act lies; they arc answerable to the House. Under our Constitution the
Executive authority of the Federation, like other democratic Constitutions
vests in the Head of the State. This principle has received recognition in
Articic.90, which requires that the executive authority vesting in the
President “shall be exercised by him either directly or through officers
subordinate to him, in accordance with the Constitution”. Since
constitutionally the President is bound to follow the advice of the Prime
Minister and Cabinet, the result is that practically the executive authority is
placed in the hands of the Cabinet headed by the Prime Minister. The President
is thus not responsible to anyone for the acts done in his name. The
responsibility lies on the Cabinet alone.
.
Since the Sovereign acts on the advice of the Cabinet, tendered through the
Prime Minister, and the Government is carried on in the name of the Sovereign,
the Cabinet is expected to keep the Sovereign informed of any departures in
policy, of the general march of political events, and in particular of the
deliberations of the Cabinet.
The
above principle is embodied in Article 46, which casts an. obligation on the
Prime Minister to communicate to the President all decisions of the Cabinet
relating to the affairs of the State, including proposals of legislation. The
President is also empowered to call for such information. Since the Cabinet is
collectively responsible to the National Assembly, where a decision is taken by
the Prime Minister or a Minister, but which has not been considered by the
Cabinet, under Article 46(c) if the President so requires, it is the duty of
the Prime Minister’ to submit such matter to the Cabinet for its consideration.
Constitution of
Tendering
of advice to the Government is not constitutional obligation of the President.
Such a claim is not countenanced by the Constitution or the law; rather the
dictates of the Constitution are otherwise. The Constitution confers such a
right on the Prime Minister and the Cabinet; the advice tendered by them is imperative
and binding on the President.
Constitutional and
Administrative Law by 0. Hood Phillips, 4th Edn. p.308 and Constitution of
India, Vol.1, p.182 by Kagzi ref,
(oooo) Constitution of
‑‑‑‑
Part 111, Chap. 1‑‑‑Powers and duties of the President are to
be gathered from the Constitution itself and there is no question of enjoyment
of any enabling or implied power by the President.
(pppp) Constitution of
‑‑‑‑
Art.58(2)(b) ‑‑‑ Article 58(2)(b) of the Constitution was
introduced in the Constitution for preventing a wrong rather than securing a
right for the President ‑‑‑
Said provision exists for wise and careful employment in ‑grave situation
within the parameters specified by Supreme Court in Federation of Pakistan
v..Haji Muhammad Saifullah Khan PLD 1989 SC 166.
Federation
of
(qqqq) Constitution of
‑‑‑‑
Art. 41 ‑‑‑ Role of President ‑‑‑
Regulation of relations between the President and the Prime Minister ‑‑‑
Norms for regulating the relationship between President and the Prime Minister
for operation of constitutional prescription stated.
The President
is a symbol of unity of
Provincial
Assemblies as well as the National Assembly and is a binding force between the
Federation and the federating units. In a pluralist Society rent with political
polarization, ethnic, racial, provincialism and other diversities, for strengthening
the process of social harmony, democracy and creative national enthusiasm, the
role of the President becomes all the more important. These objects can
meaningfully be achieved ‑if the President shuns politics and remains a
non‑controversial figure. Article 33 included in Chapter 2 of the
Constitution under the “Principles of Policy” casts an obligation on the State
to discourage parochial, racial, tribal, sectarian and provincial prejudices
among the citizens. Under Article 29 it is the responsibility of each organ and
authority of the State to act in accordance with these principles. Regulation
of relations between the President and the Prime Minister is a paramount
national requirement. Both are expected to exercise tolerance, exhibit
endurance and act within the limits of Constitutional propriety. The President
is constitutionally required to act on the advice of the Prime
Minister/Cabinet, but such advice ought not to be loaded with a perception of
dominance and veto power. If the President counsels the Prime Minister or the
Cabinet, his counselling is entitled to weight. These are some of the norms of
constitutional jurisprudence for successful operation of the constitutional
prescription.
(rrrr) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly by the
President vide Order dated 18‑4‑1993 ‑‑‑
Expressions employed, the views expressed and inferences drawn in the said
Order, sufficiently indicate that the President not only acted against the
spirit of the Constitution but also violated it and there were no reasonable
basis either in law or on facts to act in the manner as the President chose to
proceed ‑‑‑ Dissolution Order by the President therefore was
unconstitutional and otherwise than bona ride and thus was unsustainable.
Per
Sajjad All Shah, J.‑
(ssss)
Constitution of
‑‑‑‑
Art. 184(3) ‑‑‑ Provision of Art.184(3) be given liberal
interpretation to carve out and assert jurisdiction in respect of public
interest litigation.
Per Muhammad Rafiq Turar, J.; Sajjad Ali Shah, J.
(Contra).;‑‑
(tttt) Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Legislative history and interpretation of
Art.58(2)(b) of the Constitution of Pakistan.
Haji
Saifullah’s case PLD 1989 SC 166 rer.
(Uuuu)
Constitution 6f
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Action of President of Pakistan under
Art.58(2)(b) is justiciable
(vvvv)
Constitution of Pakistan, (1973)‑‑
7 Art. 58(2)(b) ‑‑‑ Powers of President to dissolve the
National Assembly ‑and dismiss the Cabinet ‑‑‑ Nature‑‑‑Premature
dissolution of National Assembly‑‑‑Effect.
The
President is empowered to dissolve the National Assembly but only in the
situation mentioned in Article 58
Article
58(2)(b) of the Constitution of Pakistan mentions in its text, three organs of
the State:
(i)
The President;
(ii)
The National Assembly; and
(iii)
The Government of the Federation.
All
these three organs are very important constituents of the State and the
Constitution makes independent and distinct provisions for their creation and
demise. It may be pertinent to note that the Cabinet and the Prime Minister do
not figure there as such.
The
National Assembly consists of the chosen representatives of the people, as
mentioned in the Objectives Resolution. They are elected through adult
franchise and they form/create the National Assembly under Article 51. Its
normal term of office is 5 years. The members can individually resign under
Article 64, so that if all the members resign, it will result in the
dissolution of the entire National Assembly. However, Article 58 also empowers‑both
the President and the Prime Minister, separately, to dissolve the National
Assembly, only for the specific reasons given there.
The
President is part of the administration and has the power to influence the
decisions of the Cabinet, the Prime Minister and the Ministers, which are to be
made and enforced in his name.
I
President
is the executive head of the Federation (Government of the Federation) and all
actions are taken in his name. He also participates to some extent in the
executive, decision‑making. Being a part of the Government of the
Federation, he cannot blame the Prime Minister and the Cabinet alone for any
unwise, illegal or even unconstitutional acts, what to speak of punishing them.
If the President thinks that the Cabinet was aiding and advising him illegally,
unconstitutionally or against public interest, despite his caution and warning,
the only way open to him, under the. Constitution’, is to inform the National
Assembly under Article 56 to which the Prime Minister/Cabinet is responsible or
dissociate himself by resigning his office under Article 44(3) of the
Constitution informing the nation about his doing so. However, he cannot blame
the Prime Minister or the Cabinet in case the National Assembly raises no
objection or endorses the objected to action or policy decision.
Again
the President has no power to dismiss the Cabinet of his own. Sub‑Article
(5) of Article 91 provides that the Prime Minister shall hold office during the
pleasure of the President, but the President shall not exercise his power
unless he is satisfied that the Prime Minister does not command the confidence
of the majority of the members of the National Assembly, in which case he shall
summon the National Assembly and require the Prime Minister to obtain a vote of
confidence from the Assembly. Thus, the
President has no power to remove the Prime Minister or dismiss the Cabinet as
long as the National Assembly offers
its confidence to him and protects him.
What
is not permitted to be done directly cannot be done indirectly. The Prime
Minister who enjoys the confidence of the National Assembly cannot be removed
or dismissed by the President. The reason may be that only the chosen
representatives of the people are the repository of the sovereign power. They,
therefore, know best what is good for the people and what is not. So if they
approve the , policies and the actions of the Government, the President has no power
of his own of interference, in any way. Be that as it may, the President could not get rid of the Prime Minister or the
Cabinet indirectly, foe the alleged faults of theirs, by dissolving the
National Assembly.
The
President has neither a power to dismiss the Cabinet nor is he a controller or
a supervisor of the National Assembly. Rather, he is compelled to accept and
give his assent to whatever is done by the Cabinet on the one hand and the
National Assembly alongwith the Senate on the other. He, according to the
various provisions of the Constitution can, at the most, participate,
individually, as a counsel or a warning. Like any other member of the Cabinet,
he can influence but cannot veto. Rather he has an edge over others as he can
once veto the decision of the Prime Minister, the Cabinet or a Minister.
However, if his counsel or warning is not heeded to, he has, like any other
member of the Cabinet, either to accept the things as presented to him, by the
majority decision or quit if he so desires.
Therefore,
after a decision is made, no constituent of that decisionmaking body can
absolve himself of it, whether he participated in the decisionmaking or not;
whether he opposed the motion or proposed any amendment; or was even absent at
that time. In that view of the matter, the scrutiny of the governmental actions
would thin lie with the Parliament, though even they cannot annul them as such,
without formally legislating against them, or by passing a resolution
disapproving a particular act of commission or omission of the Prime Minister
or the Cabinet.
Article
91(5) lays down that the President cannot, straightaway, dissolve the National
Assembly even if the Prime Minister fails to get a vote of confidence from the
National Assembly. He has to first ascertain practically, under Article
58(2)(a), that no other member enjoys the confidence of the National Assembly,
before he acts to dissolve. Thus the President has neither any control over the
Cabinet nor has the National Assembly been placed at his mercy, in his
discretion or at his bald pleasure. It is thus only the National Assembly which
can decide the removal of one Prime Minister and his Cabinet, by withdrawing
its support and electing another Prime Minister before the President may act
under Article 58, for constitutional reasons, justiciable before the superior
Courts of
The
President has no power to dismiss a Prime Minister, directly or indirectly,
howsoever illegal, unconstitutional or against public interest his actions
might look to him. But if the person holding the office of the President
pleases to remove a Prime Minister, who enjoys the confidence of the National
Assembly, under the cloak of the powers contained in Article 58(2)(b) by
dissolving the National Assembly, he may be accused of subverting the 4k~
Constitution within the meaning of Article 6 of the Constitution. It is
pertinent to note that the protection provided in Article 248 from
accountability and the remedy provided in Article 47 of impeachment, do not cover
the acts of subversion or abrogation of
the Constitution or even attempting or conspiring to do so. The dissolution of
the National Assembly, therefore, must be . strictly covered by Article
58(2)(b), in order to be condoned by the Courts and to 4,N avoid an action
under Article 6 of the Constitution.
Article
58(2)(b) foresees one and only one situation, for dissolution of the National
Assembly and that is where in the opinion of the President, the Government of
the Federation cannot be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary. It is thus not a
mere omission to act, on or in violation of, one or more Articles of the
Constitution but a state of checkmake or a deadlock, which may be brought about
by violation of one or more provisions of the Constitution separately or
collectively.
The
Court has to test each and every ground of the President for dissolving the
National Assembly, on the following touchstones, and see that they satisfy the
prescribed requirements, in order to condone the action taken:
(a) Was there an actual or imminent
breakdown of the Constitutional machinery, as distinguished from a failure to
observe a particular provision of the Constitution?
(b) Has there taken place any extensive,
continued and pervasive failure to observe not one but numerous provisions of
the Constitution, creating the impression that the country is governed not so
much by the Constitution but by methods extra‑Constitutional?
(c) Is there an imminent danger
of breakdown of the Constitutional
machinery so as to take an
immediate action for nipping it in the bud?
(d) Is it imperative to
mend the ill‑effects of a breakdown that has
occurred.
The
words “cannot be carried on” show the helplessness of the Cabinet, in, a
situation, unchecked or brought about by the National Assembly or some outside
force against which even the National Assembly cannot afford a protection or
cure, so that the Cabinet cannot be helped to carry on the Government of the
Federation and it will have to go, with the National Assembly.
Constitution
does not permit P to punish‑ N for the offence of G. The import of the
Fundamental Rights 9, 10 and 12 to 15 supports the view. No system of law
anywhere in the world permits that. The Holy Qur’an announces emphatically that
“Each man shall reap the fruits of his own deeds: no soul shall bear an other’s
burden”. (Q.6:165). In that view of the matter it will be wrong to say that the
President has the power, to dissolve the National Assembly, for the reason that
the Government of the Federation, in his view, is acting in illegal or
unconstitutional manner or it cannot be run in
accordance
with the Constitution, because of its acts of commission or omission.
The
fault has thus to be found, not in the working of the Prime Minister or the
Cabinet but in the working of the National Assembly. Again, it is not every
fault but only that fault which has rendered the working of the Government of
the Federation impossible and has also made an appeal‑to the electorate
necessary.
So,
no action in the nature of dissolution of the National Assembly or dismissal of
the Cabinet by the President will be justified where the Prime Minister enjoys
the confidence because of the working of the
of
the House and no deadlock has appeared National Assembly. The result is that if
the
National
Assembly is working smoothly and there exists no deadlock for the Government to
carry on its functions, the President neither has the power to dismiss the
Prime Minister and his Cabinet nor can he dissolve the National Assembly.
Another
important consideration to be closely looked at is about the phrase ‘and an
appeal to the electorate is necessary’ as stipulated in Article 58(2)(b). The
circumstances relied on by the President should not only show the situation in
which ‘the Government of the Federation cannot be carried on in accordance with
the provisions of the Constitution’ but that nothing else in the Constitution
can provide a remedy and therefore, ‘an appeal to the electorate is necessary’.
It means that the extreme measure of dissolution must not be resorted to if
another alternative is available.
The
order of the President dissolving the National Assembly is not maintainable yet
on another ground also. The ‑provisions and the principles as contained
in the Objectives Resolution are now the substantive and effective part of the
Constitution, in view of its Article 2A. According to the opening . part of the
Objectives Resolution the sovereignty over the entire Universe belongs to Allah
Almighty alone. The law of Allah is thus supreme, immutable, insurmountable and
unalterable and every other man‑made law repugnant to it must be removed
by Parliament or Courts or by other organs of the State in the mode contemplated
in the Constitution. Almighty Allah has delegated His authority to be exercised
by the people of
Premature
dissolution of an Assembly is a very severe punishment to members and moreso to
the people and the national exchequer. The members lose their remaining term of
office, provided by the Constitution and they have to spend millions on fresh
elections, with no guarantee of success. The nation is deprived of the
continuance of the policies and projects, is exposed to instability and
uncertainty, loses the confidence of the Governments and investors at home and
abroad, faces economic and administrative chaos and is required to spend crores
of rupees on the new election. So, in the case of dissolution of Assembly, for
the misdeeds of the Cabinet, the
punishment is
awarded,
not only to those few members who are in the Cabinet but also to the other
majority whether they are in majority of
the members of the National Assembly the Opposition, the Independents or with
the Treasury and also the people, for no fault of theirs.
distinguished.
Ahmad
Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646 lah Khan PLD 1989 SC 166;
KhawajaFederation
of Pakistan v. Haji Saiful Muhammad
Sharif v. Feder, ation of Pakistan PLD 1988 Lah. 725; Ahmad Tariq Rahim v.
Federation of.
Tariq
Rahim v. Federation of
Law
of the Constitution by Dicey, 1960 Edn., p.420 and Constitutional Law by
Wade,
7th Edn., p.118 ref.
(wwww)
Constitution of
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
vide his Order dated 18th April, 1993 showed, that the grounds mentioned
therein had no nexus or connection with the Constitutional power and the
President punished the National Assembly for not withdrawing their support to
an “insolent” and “rude” Prime Minister and the Cabinet ‑‑‑
Said Order was. passed in a fit o anger and vengeance and under a totally
mistaken view that Constitution had conferred any such power on him ‑‑‑
Order of President dissolving the National Assembly and dismissing the Prime
Minister and the Cabinet therefore could not be condoned and thus was declared
to be unconstitutional and void.
Facts
and circumstances of the case which persuaded the President to form his opinion
to dissolve the National Assembly and dismiss the Cabinet go to show, without
any doubt that they had no nexu’s or connection with the Constitutional power
and so the President was punishing the National Assembly for not withdrawing
their support to an ‘insolent’ and ‘rude’ Prime Minister and the Cabinet.
Order
was passed in a fit of anger and vengeance.
The
President, unfortunately assumed to himself the position of a Judge sitting on
the performance of the Government and thought that he had the power to punish
the 1~abinct for the acts of omission and commission as ascertained by him. He,
therefore, taking himself as the Authority and the Cabinet as civil servants,
inflicted on them the major penalty, as under the Efficiency and Discipline
Rules. He was, however, totally mistaken that the Constitution conferred any
such power on him. The exclusive power in respect of all the charges levelled
by him vested in the National Assembly, to whom the Prime Minister and the
Cabinet were accountable. The National Assembly, however, did not find any
fault with the performance of the Cabinet and consequently took no action.
Obviously, the National Assembly seemed to have been punished by the President
for that omission. His order, therefore, could not be condoned.
The
President’s Order, therefore, was declared to be unconstitutional and void and
was to be deemed to have never been passed and promulgated. Therefore, the
National Assembly and the Cabinet were to be placed in the same position in
which they were before the impugned order of the President was promulgated.
Per Saleem Akhtar, J.; Saijad All Shah,
J. Contra‑‑‑
(xxxx) Constitution or
‑‑‑‑
Art. 184‑‑71ntcrpretation, scope, application and nature of Art.184‑‑Article
184 is an effective weapon provided to secure and guarantee the fundamental
rights.
Article
184(3) of the Constitution of Pakistan confers power on the Supreme Court to
consider questions of public importance which are referable to the enforcement
of any Fundamental Rights guaranteed by the Constitution and enumerated in
Chapter 1 of Part 11. This power is without prejudice to the provisions of
Article 199 which confer similar power with certain restrictions on the High
Court. The power conferred depends upon two questions; one, that the case
sought to be heard involves question of public importance and two, the question
of public importance relates to the enforcement of Fundamental Rights. It is
not every question of public importance which can be entertained by this Court,
but such question should relate to the enforcement of Fundamental Rights. This
provision confers a further safety and security to the Fundamental Rights
conferred and guaranteed by the Constitution. This shows the importance which
Fundamental Rights have in the scheme of the Constitution. They cannot be
curtailed or abridged and any provision of law or action taken which violates
Fundamental Rights conferred by the Constitution shall be void. The nature of
jurisdiction and the relief which can be granted under this Article is much
wider than Article 199. It confers a power to make an order of the nature
mentioned in Article 199. The word ‘nature’ is not restrictive in meaning but
extends the jurisdiction to pass an order which may not be strictly in
conformity with Article 199 but it may have the same colour and the same scheme
without any restrictions imposed under it. Article 184 is an effective weapon
provided to secure and guarantee the fundamental rights. It can be exercised
where the Fundamental Right exists and a breach has been committed or is
threatened. The attributes of Article 199 of being an aggrieved person or of
having an alternate remedy and depending upon the facts and circumstances even
laches cannot restrain the power or non‑suit a petitioner from riling a
petition under Article 184 and seeking relief under it. The relief being in the
nature mentioned in Article 199 can be. modified and also consequential relief
can be granted which may ensure effective protection and implementation of the
Fundamental Rights. Even disputed questions of facts which do not require
voluminous evidence can be looked into where Fundamental Right has been
breached. However, in cases where intricate disputed questions of facts
involving voluminous evidence are involved the Court will desist from entering
into such controversies. Primarily, the questions involved are decided on
admitted or prima facie established facts which can be determined by riling
affidavits. Evidence in support of allegations can be taken orally in very
exceptional cases where the breach is of a very serious nature affecting large
section of the country and is of great general importance.
(yyyy) Constitution of
‑‑‑‑
Arts.184(3), 17(2) & 58(2)(b) ‑‑‑ Political right
guaranteed in Art.17(2)‑‑Extent ‑‑‑ If the
political right as conferred by Art.17 is violated in breach of the
Constitution, Art. 184(3) can be invoked for violation of Fundamental Rights‑‑‑Order
of President dissolving the National Assembly and dismissing the Prime Minister
and the Cabinet under Art.58(2)(b) affects the right conferred under Art.17(2)
of the Constitution ‑‑‑ Fundamental Rights can be restricted
or controlled in terms of the provisions of the Constitution and no authority
can derive power from any other source to restrict, 41bridgc, offend or violate
Fundamental Rights.
Article
17(2) of the Constitution guarantees the right to form or to be a member of a
political party and to operate as the formation and operation of a political
party are two such spheres which by a process of legal path as provided by the
Constitution and law the party attains its goal inside and outside the
Assembly. The political functioning and activities of a political party do not
end once its members arc elected to any assembly. It has multifarious
activities within the Assembly and outside the Assembly. Election is merely a
process to choose its representatives by the political sovereign, i.e., the
electorate to authorise them to continue their political activity inside the
Assembly. Election is merely a road leading a successful member to enter the
Assembly but it does not end there. The process continues transforming into
formation of the Ministry or becoming a Minister or to be a leader of the
Opposition or member of the Opposition Party, to participate in the debates and
discharge all such Constitutional and legal duties which are enshrined in the
Constitution, responsibility of which is cast on the members. The elected
members have far more responsibility than the members of the political parties
working outside the Assembly as unelected representatives. The Minister is not
only collectively responsible to the National Assembly, but he is also
accountable to the people. Thus, if the political right as conferred by Article
17 is violated in breach of the provisions of the Constitution, Article 184(3)
can be invoked for violation of Fundamental Rights.
he
infringement of Fundamental Rights in be in many ways. Okt times even a law
made by the legislature may offend a Fundamental Right and to that extent it
may be void, but in certain cases the law may not be void, but the machinery
adopted and the orders passed under it may be such which violate the
Fundamental Rights, they are thus challengeable. The same principle will apply
where the Constitution imposes any restriction on exercise of a Fundamental
Right and provides parameters and conditions for exercise of such power. Any
authority or person exceeding that jurisdiction passes an order which is not
within the framework of the restrictions imposed, then such order violates the
Fundamental Rights and can be scrutinized by Supreme Court as provided by the
Constitution. Therefore, the order passed by the President dissolving National
Assembly and dismissing the Prime Minister and the Cabinet under Article
58(2)(b) of the Constitution does affect the right conferred under Article
17(2). It is only to be seen that although the President of Pakistan is
empowered to pass an order for dissolution of National Assembly in certain
given circumstances, have they been observed without infringing the Fundamental
Right. Because Fundamental Right can be restricted or controlled in terms of
the provisions of the Constitution and no authority can derive power from any
other source to restrict, abridge, offend or violate Fundamental Right.
Syed
Abul A’ala Maudoodi’s case PLD 1964 SC 673; Bcnazir Bhutto’s case PLD 1988 SC
416 and Haji Saifullah’s case PLD 1989 SC 166 ref.
(zzzz) Constitution of
‑‑‑‑
Art.2A ‑‑‑ Provision of Art.2A is not a supra‑Constitutional
provision but is a part of the Constitution and does not override any other
provision of the Constitution.
(aaaaa) Constitution of
‑‑‑‑
Art.2A ‑‑‑ Political justice ‑‑‑ Article 2A
having been enacted in the
Constitution,
the political justice as guaranteed in the Objectives Resolution is recognised
and guaranteed by the Constitution.
Hakim
Khan’s case PLD 1992 SC 595 ref.
(bbbbb)
Constitution of
‑‑‑‑
Art.17 ‑‑‑ Political right or political justice does not end
with the election to the Assemblies but it is an on‑going process which
starts with the formation of the political parties, participation in the
elections and thereafter to operate and participate in governance of the
country by the majority rule ‑‑‑ Provisions of Arts.51, 52,
91 & 92 will not put an end to the Fundamental Rights which had started
with the formation of political parties.
democracy
is a method of life which provides and paves way for achieving political,
economic and social rights which a human being is entitled to and almost all of
them have been guaranteed by the Constitution as Fundamental Rights. The
political right or political justice does not end with the election to the
Assemblies. It is an on‑going process which starts with the formation of
the political parties, participation in the elections and thereafter to operate
and participate in governance of the country by the majority rule. How can in
these circumstances be it contended successfully that immediately after the
election the political rights cease to exist. It is true that such Fundamental
Rights which emanate from Article 17(2) travel to the Assemblies with the
process of election and may be regulated by other provisions of the
Constitution, namely, Articles 50, 51, 52, 91 and 92, but it will be a far cry
to state that these provisions of the Constitution put an end to the
Fundamental Rights which had started with the formation of political parties.
In
a democratic just order every citizen has right to equal participation in the
political process as required by the Constitution. Every citizen without any
discrimination within the frontiers of the Constitution can profess, practise,
exercise and operate his right to participate in the governance of the country.
He is entitled to form or join a political party, contest for an elective
position and to hold and exercise authority of politically elected office which
by virtue of such political process he is entitled under the Constitution. If
the objects of democracy have to be achieved, if economic, social and political
justice as enshrined in the Constitution and proclaimed by a political
democratic Government has to be attained, then the parties and the members of
the Assemblies have to play their role inside the Assembly as well for governance
of the country. So long they are not disqualified by Constitution or by law to
remain as members of the National Assembly, their political right to operate in
the Assembly cannot be curtailed, abridged or violated.
A
Theory of Justice by John Rawl; The Foundations of Freedom by Durward V.
Sandifer and L. Ronald Scheman and Universal Declaration of Human Rights,
Art.21 ref.
Kh.
Ahmad Tariq Rahim v. Federation of Pakistan PLD 1991 Lah.78 and PLD 1955 FC 435
distinguished.
(ccccc)
Constitution of
‑‑‑‑
Arts.184(3) & 17(2) ‑‑‑ Dissolution of National Assembly
and dismissal of Prime Minister and the Cabinet by the President under
Art.58(2)(b) ‑‑‑ Direct petition under Art.184(3) to the
Supreme Court against such order is maintainable provided the petitioner is
able to show that the impugned order has transgressed, impinged and infracted
the Fundamental Rights of the petitioner or members of the Assembly or citizens‑at‑large.
(ddddd) Constitution or
‑‑‑‑
Art,58(2)(b) ‑‑‑ Provision of Art.58(2)(b) is to be strictly
construed ‑‑‑ Import, scope and extent of Art.58(2)(b) of the
Constitution.
The
President is empowered to dissolve the National Assembly if he forms an opinion
that the Government cannot be run in accordance with the Constitution. This
power is not absolute or unfettered. The President has first to form an
opinion, an objective opinion on the basis of the material before him to come
to the conclusion that the Government cannot be carried on in accordance with
the Constitution. The formation of opinion being objective in nature can be
judicially examined and reviewed by the Courts. While interpreting the
Constitution one has to keep in mind the nature of this sacred document which
is the supreme law and the law of the laws.
The
Constitution is a living organism and has to be interpreted to keep alive the
traditions of the past blended in the happenings of the present and keeping an
eye on the future. Constitution is the symbol of statehood keeping united
people of different races, diverse cultural, social, economic and historical
traditions. It provides a method of legitimacy to the Government. it is the
power behind the organs and institutions created by it. Constitution must be
interpreted keeping in view the entire canvass of national fabric, be it
political, social, economic or religious.
In
interpreting Article 58(2)(b) the Constitutional background is to be taken into
consideration. The Constitution envisages parliamentary form of Government. Therefore,
if any provision has been inserted in the Constitution afterwards infringing,
or impinging on the democratic and parliamentary system, it is to be construed
in a manner that spirit and form of parliamentary system is not distorted. The
conditions as laid down in Article 58(2)(b) should be strictly construed.
Article 58(2)(b) conferring a power to dissolve the National Assembly in
certain circumstances cannot be given a liberal or wide meaning. It has to be
given a restricted meaning in the facts and circumstances of the case.
In
the presence of clear and specific provisions in the Constitution, conventions
and prerogatives of the
Khalid
Malik’s case PLD 1991 Kar. 1; Federation of Pakistan v. Haji Muhammad Saifullah
Khan PLD 1989 SC 166 and Khawaja Ahmad Tariq Rahim’s case PLD 1992 SC 640 ref.
(eeeet)
Constitution of
‑‑‑‑
Arts. 64, 63, 58(2)(b) & 91(5) ‑‑‑ Rules of Procedure and
Conduct of Business in the National Assembly, 1992, R.25 ‑‑‑
Procedure for submitting a resignation by a member of the National Assembly
emerging from both the provisions as contained in’ Art. 64 and Rule 25 of Rules
of Procedure and Conduct of Business in the National Assembly ‑‑‑
Dut) of Speaker on receipt of resignation ‑‑‑ Resignation has
T‑o be voluntary, genuine and intended to vacate
the seat ‑‑‑
Resignallion.1s a voluntary act o( a member or person submitted with the
intention to relinquish, relieve or quit that particular post or position and
to vacate the same ‑‑‑ Resignations obtained by any person
politically or officially in authority or not from the members and delivery to
a third party other than the person authorised to receive them, with the
intention to achieve political gains and create a ground for dissolution of the
Assembly can neither form basis for such action nor be justified by any
principle of law, morality and ethics.
From
Article 64 of the Constitution of Pakistan and Rule 25 of the Rules of
Procedure and Conduct of Business in the National Assembly, 1992 the procedure
for submitting a resignation by a member of the National Assembly emerges as
follows:‑‑
(i)
The resignation should be in writing under his hand and should be addressed to
the Speaker.
(ii)
The resignation may be delivered by the member personally or through any other
means.
(iii)
If the letter of resignation is delivered personally, then the Member should
inform the Speaker that the resignation is voluntary and genuine.
(iv)
If the resignation is delivered by any other means’ then the Speaker shall make
inquiry into the genuineness of the resignation and ascertain whether it is
voluntary or not.
(v)
The Speaker after satisfaction that the resignation is genuine and voluntary,
shall inform the National Assembly and then the seat shall be declared vacant.
(vi)
The date of resignation of a member shall be the same as specified in the
letter of resignation or if no date has been given, then the date of receipt by
the Speaker.
In
order to make it valid and effective, besides complying with the procedure laid
down, it should be voluntary, genuine and should be intended to vacate the
seat. Resignation is a voluntary act of a member or person, submitted with the
intention to relinquish, relieve or quit that particular post or position and
to vacate the same. It cannot be a two‑way traffic or an act to use it
for any purpose liked by any third person. The resignations obtained by any
person politically or officially in authority or not from the members and
delivery to a third party other than the person authorised to receive them,
with the intention to achieve political gains and create a ground for
dissolution of the Assembly can neither form basis for such action nor be
justified by any principle of law, morality and ethics.
The
resignations should not only be addressed to the Speaker, but they should be
intended to be delivered to the Speaker.
The
Constitution has ordained that the resignation by a member is effective only
when it is “addressed” to the Speaker: it is not intended to be an idle
formality. To relinquish the parliamentary seat by resignation is a grave and a
solemn act. The letter of resignation should be signed by the member
voluntarily and submitted personally to the Speaker or transmitted through duly
authorised person for delivery to the Speaker.
The
Constitution has thus cast onerous duty on the Speaker to make inquiry into the
genuineness and voluntary nature of the resignation and also that it has come
through an authorised person, if not submitted personally. The Speaker can
neither refuse to discharge this duty nor can any authority bypass him. The
solemnity and sanctity attached to the resignation by a member of the National
Assembly shall be eroded if it is made in contravention of the provisions of
the Constitution and the rules and furthermore if they are intended not to
vacate the seat, but for any other purpose, ulterior, oblivious or clandestine.
Such letters of resignation which do not have any validity or sanction under
law can hardly be accepted muchless by a person of high position like the
President to assess the confidence the members have in the Assembly and also to
assess a situation whether the Government can be run in accordance with the
Constitution. 1p. 81910
The
exercise of pleasure by the President under Article 91(5) of the Constitution
of Pakistan is conditional and not absolute. An embargo has been imposed on its
exercise and the President is precluded from forming his opinion and satisfaction
on the basis of anything but the votes given on the floor of the House. As the
Constitution contains specific provisions for governing such a situation, and
provides a procedure and manner for ascertaining the fact whether the Prime
Minister has lost confidence of the House, no other mode of ascertainment can
be adopted. If a statute provides anything to be done in a particular manner,
no deviation from the give course is permissible. Any ascertainment of such
fact in an unconstitutional manner or on extraneous consideration cannot be
made basis for removing the Prime Minister. It is thus clear that most of the
resignations collcoted and delivered to the President could not be made basis
for reaching the conclusion or satisfying himself that the petitioner did not
command confidence of the majority of the National Assembly. The only course
open for the President was to summon the National Assembly and require the
Prime Minister to obtain the vote of confidence from the Assembly. The
determination of such fact is not left to the President or any authority except
the National Assembly. Such resignations could hardly be made a ground for
dissolving the National Assembly.
Speaker
enjoys a unique position in the Constitutional structure of the country. He has
to preside over the House and is required to maintain decorum and discipline.
He should be impartial, just and disinterested and discharge his duties without
fear or favour, ill‑will or affection. His most important duty is to
maintain discipline amongst the members of the Assembly in the House and also
control their conduct and utterances House made in violation of [he
Constitution. In this regard reference can be made to Article 63 of the
Constitution which provides disqualification for membership of the Majlis‑c‑Shoora.
It enumerates several conditions when a person shall be disqualified from being
elected or chosen and from being a member of the Parliament. It not only
specifies the disqualification attaching before the elections, but even the
disqualification which may occur or may be carried unnoticed after the election
to the House. Once such disqualification or misconduct as enumerated therein
are noticed and a question arises whether he has become disqualified from being
a member, the Speaker shall refer the question to the Chief Election
Commissioner and if he declares him to be disqualified, he shall cease to be a
member and his seat shall become vacant. Therefore, heavy responsibility has
been cast on the Speaker to be watchful and to maintain discipline with strict
observance of the provisions of the Constitution. Pointed reference can be made
to Article 63(l)(g) which though in existence has never found its importance by
any authority or the Speaker concerned. Under sub‑clause (2) of Article
63 the Speaker should not wait for the question to be raised, but once it is
brought to his notice or he suo motu notices any breach of any provision of
Article 63, it is his duty to refer the
matter to the Chief Election Commissioner. The word ‘shall’ in Article
63(2)’ indicates that a mandatory duty has been cast on the Speaker to refer
the question to the Election
commissioner. If any breach has been brought to his notice, it is not
for him to decide it, but he is merely to refer it to the Chief Election Commissioner.
Any unreasonable delay in sending such matter
to
the Chief Election Commissioner is bound to cloud the high status of the
Speaker.
even
outside the
A.K.
Fazalul Quader Chaudliry v. Syed Shah Nawaz and 2 others PLD 1966 SC 105 and
Mirza Tahir Beg v. Syed Kausar Ali Shah PLD 1976 SC 504 ref.
Adegbenro
v. Akintola and another 1963) 3 All ;R 544
distinguished.
(M11) constitution or Pakistan
(1973)...
‑‑‑‑
Art.58(2)(b) ‑‑‑
Mere speech by the Prime Minister in which innuendos have been made, person at
tile highest office (President) has been attacked, does not amount to
subversion and does not necessarily mean that the relationship has completely
broken down and both ends cannot meet together thus warranting action under
Art.58(2)(b) of the Constitution by the President.
The
high offices require high standards, high status, high morality and large
heartedness as well. Mere speech in which innuendos have been made, person at
the highest office has been attacked, does not necessarily mean that the
relationship has completely broken down and both ends cannot meet together. The
high off‑ice demands a sagacious, thoughtful, gracious and
benevolent
attitude from the people at the high position and status. They should have the
depth of the sea and the vastness of the horizon to absorb all sorts of
follies, mistakes and even indecent conduct and attitude. There are instances
in history that people at such high elected offices have been at variance, even
belonging to different views and different parties, but in spite of that they
have run the Government well and according to the Constitution. The best policy
to run smoothly is to be above personalities and personal pride and prejudice.
The tenor of the speech, in the background which would have subsided with the
passage of time, though offensive in nature prima facie had some basis, but did
not amount to subversion of the Constitution nor could it create a complete
deadlock or stalemate resulting in collapse of the constitutional machinery.
Subversion of the Constitution is high treason punishable with death. It cannot
be determined by referring to the speech alone and by an authority not
competent to decide it.
Constitution
maintains the foundation and spirit of the democratic principles enshrined in it.
Although it may have a different look than Westminster democratic principles,
the spirit and the form is democratic. The Constitution provides for specific
powers of the President and the duties of the Prime Minister with a view to
keep them within their’ own boundaries and the limits provided by it.
(ggggg)
Constitutiofi of Pakistan (1973)‑‑‑
‑‑‑‑
Part III, Chaps. 1 & 3 ‑‑‑ Duties and relationship of
President and Prime Minister as provided in the Constitution detailed.
Khawaja
Ahmad Tariq Rahim’s case PLD 1992 SC 646 ref.
(hhhhh) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art.6 ‑‑‑ Subversion of the Constitution ‑‑‑
Effect, weight and impact of speech is to be judged from an overall
appreciation by looking to its background, the truthful statement made in it
and object with which it has been made ‑‑‑ If such a speech
makes allegations or defames anyone without any justification, but does not
create l4wlessness, disorder or threat to security or disruption it will hardly
amount to subversion of the Constitution.
Right
of expression and speech is conferred by the Constitution and is regulated by
law. Every restriction on free speech must pass the test of reasonableness and
overriding public interest. Restriction can be imposed and freedom of expression
may be curtailed provided it is justified by the “clear and present danger”
test that the substantive evil must be extremely serious and the degree of
imminence extremely high. The danger should “imminently threaten immediate
interference with the lawful and pressing purposes of the law” requiring
immediate step to ensure security of the country. Speech would be unlawful if
it is directed to inciting or producing imminent lawless action and is likely
to produce such action. Speech and conduct are two different concepts. Speech
relates to expression and conduct to action. Speech ends where conduct begins
but if both are combined the Court has to draw the dividing line. The freedom
of expression of views is curtailed or restricted when they “threaten clearly
and imminently to ripen into conduct against which the public has a right to
protect itself.
Fear
of serious injury cannot alone justify suppression of free speech and assembly
... there must be reasonable ground to fear that serious evil will result if
free speech is practised. There must be reasonable ground to believe that the
danger apprehended is imminent. There must be reasonable ground to believe that
the evil to be prevented is a serious one ... In order to support a finding of
clear and present danger it must be shown either that immediate ‑serious
violence was to be expected or was advocated, or that the past conduct
furnished reason to believe that such advocacy was then contemplated.
‘The
effect, weight and impact of speech is to be judged from an overall
appreciation by looking to its background, the truthful statement made in it
and object with which it has been made. If such a speech makes allegation
or
defames anyone without any justification disorder, or threat to security or
disruption, i of the Constitution.
but
does not create lawlessness, will hardly amount to subversion
Saia
v. N.Y. (1948) 334 US 558; American Communications
,Association
v. Douds (1950) 339 US 382 and Whitney v. California 274 US 357 (1927) ref.
(iiiii) Constitution of Pakistan (1973)‑
‑‑‑‑
Arts.153 & 154 ‑‑‑ Council of Common Interests ‑‑‑
Function.
I
The Council of Common Interests is an important Constitutional institution
which irons out differences, problems and irritants between the Provinces inter
se and the Provinces and the Federation in respect of matters specified in
Article 154. The Council is responsible to Majlis‑e‑Shoora, which
in joint sitting may from time to time by resolution issue directions through
the Federal Government generally or in particular matters to take action as the
Parliament may deem just and proper and such directions shall be binding or the
Council.
(0)
constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art.58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b)
inter aria on the ground . that Council of Common Interests had not discharged ‘its
Constitutional functions to exercise its powers particularly in the context of
privatization of industries in relation to subject‑matter mentioned in
Art.154‑‑‑
Held,
objections raised were in respect Of
matters which were yet to be considered and could have been sorted out in
future, however, working, the performance, the actions taken by the Council
during the past two years had not been commented upon or objected to ‑‑‑
Allegation that the performance was not in accordance with the Constitution or
it was not perfect and proper could not be made a ground for dissolution of
National Assembly in circumstances.
Khalid
Malik’s case PLD 1991 Kar. and Khawaja Ahmad Tariq Rahim’s case PLD 1992 SC 646
distinguished.
(kkkkk) Constitution of Pakistan .(1973)...
‑‑‑‑
Art.58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of Prime Minister and Cabinet by the President under Art.58(2)(b)
inter alia on the ground that Constitutional powers, rights and functions of
the provinces had been usurped, frustrated and interfered with in violation of,
inter alia, Art.97 of the Constitution ‑‑‑ Held, description
of allegation being so vast, wide and
vague,
the same could not justify the order of dissolution.
(11111) Words and phrases...
‑‑‑‑“Corruption”‑‑‑M
caning.
The
word ‘corruption’ has not been defined by any law, but it has diverse meanings
and far‑reaching effects on society, government and the people. It covers
a wide field and can apply to any colour of influence, to any office, any
institution, any forum or public. A person working corruptly acts inconsistent
with the official duty, the rights of others and the law governing it with
intention to obtain an improbable advantage for himself or someone else.
.
Khalid Malik’s case PLD 1991 Kar. 1 ref.
(mmmmm)
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art.58(2)(b) ‑‑‑ Grounds like corruption, nepotism, misuse of
banks and lack of transparency in the process of privatization and sale of
cement factories cannot form an independent ground for dissolution of National
Assembly‑by the President under Art.58(2)(b).
Ahmad
Tariq Rahim’s case PLD 1992 SC (A6 ref.
(nnnnn) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art.58(2)(b) ‑‑‑ Ground of unleashing a reign of terror
against the opponents of the Government including political and personal
rivals/relatives and mediamen, under direction, control, collaboration and
partronage of the Prime Minister and Ministers leading to a situation where the
Government could not be carried on in accordance with the provisions of the
Constitution and law being too vague, could not be considered for dissolving
the National Assembly by the President under Art.58(2)(b) of the Constitution.
(ooooo)
Constitution or Pakistan (1973)‑‑‑
‑‑‑‑
Art.91 ‑‑‑ Principle of collective responsibility of the
Cabinet.ref.
Theory
of collective responsibility will be applicable to the working of the Cabinet
and the Government. In a parliamentary form of Government the leader of the
majority party becomes the Prime Minister and forms the Government. The Cabinet
Minister are appointed by the President on the advice of the Prime Ministers.
The principle of collective responsibility applies to the Ministers. They may
differ inside on an issue, but if the Cabinet has taken a decision, the
dissenting Minister in all propriety avoids expressing disagreement in public.
The Cabinet decision is binding on all the Ministers whether they agreed or not
and whether they were present or not in the meeting.
The
principle of collective responsibility, as applied to Cabinet Ministers, means
that each Minister accepts responsibility for the decisions of the whole
Cabinet. Inside the Cabinet, a Minister may argue for a different course of
action but he is expected not to express public disagreement with the course
decided on though dispensation may be given to a Minister on a matter
particularly affecting his constituency. If he feels very strongly on a matter
he may resign in which case he will have an opportunity to make. a statement in
Parliament. This version of the doctrine applies in the simplest case where
Ministers are present at the Cabinet meeting where the decision is taken. But
it also applies to Cabinet Ministers who are not present and so could not be
said to participate in the making of the decision; and to those decisions of
Cabinet Committees which are not required to be endorsed by the full Cabinet
and the existence of which some Ministers may be unaware. The Chairman of each
Cabinet Committee decides, after consultation with the Prime Minister (where
the Chairman is not the Prime Minister), whether decisions of the Committee may
be taken by a dissident Minister to the full Cabinet.
Practice
and Procedures, p. 23 by J.A.G. Griffith and Michael Ryle
(ppppp)
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art.58(2)(b) ‑‑‑ Mere instructions, orders or desire of the
?rime Minister asking the Ministers not to see the President cannot be , a
ground for dissolution of the Assembly under Art.58(2)(1)).
(qqq(1(1) Constitution of Pakistan
(1973)‑‑‑
‑‑‑‑
Art.58(2)(b) ‑‑‑ Financial irregularities could not be an
independent ground for dissolving the National Assembly by the President under
Art.58(2)(b) of the institution.
(rrrrr) Constitution or Pakistan (1973)
‑‑‑‑
Art.58(2)(b) ‑‑‑ Allegation of wife of late Chief of Army
Staff that her husband did not die the natural death but was poisoned was not a
relevant ground for dissolving the National Assembly by the President.
(sssss) Constitution of Pakistan (1973)...
‑‑‑‑
Art.58(2)(b) ‑‑‑ Two requirements of Art.58(2)(b), viz.
Government could not be carried on in accordance with the provisions of the
Constitution and situation required fresh public mandate have to be satisfied ‑‑‑
Both the requisites being inseparable, if one requirement is not satisfied
second requirement cannot be invoked.
That
the Government cannot be carried on in accordance with the provisions of the
Constitution and situation requires a fresh public mandate are the requirements
of Article 58(2)(1)). These arc, two independent conditions and unless both are
satisfied no order of dissolution can be passed. Both the conditions arc inter‑related
and inter‑dependent. They are inseparable and indivisible. The second
condition viz., “an appeal to the electorate is necessary’ limits and
circumscribes the dimension and scope of the first condition. The facts
attracting the first ‑condition should be so dangerous and explosive that
they call for a fresh mandate. The opinion to be formed whether fresh mandate
is required will be objective in nature which can be judicially reviewed. If
the first condition was not satisfied, the second condition could not be
invoked.
(ttttt) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art.54(3) ‑‑‑ Article 54(3) of the Constitution does not
limit the power of the President to dissolve the Assembly if Speaker had
summoned the requisitioned meeting of the Assembly under said Article.
Per Sueeduzzurnan Sidoliqui, J.; Sajjad
Ali Shah, J. Contra‑‑‑
(uuuuu) Constitution (if Pakistan (1973)‑‑‑
‑‑‑‑
Arts. 17(2), 184(3) & 58(2)(b) ‑‑‑ Words “Political”, “Political
Party” and “operation” occurring in Art.17(2) ‑‑‑ Connotation
‑‑‑ Right to form a political party guaranteed under
Art.17(2) of the Constitution necessarily includes in it, the right to continue
in power, if duly elected by the people for the full tenure, subject to other
provisions of the Constitution ‑‑‑ If duly elected Government
is ousted or interrupted from continuing in power through unconstitutional
means,
same can legitimately make a grievance that its fundamental right under
Art.17(2) has been violated and Constitutional petition under Art.184(3) much
order is maintainable.
The
words ‘Political’ and ‘Political Party’ are terms of Political Science.
A
Political Party is a voluntary association of persons, formed with the object
of propagating a definite political opinion/view on a matter of public
importance, having an ultimate aim to get into the power seat of a Government,
through the process of election, in order to give effect to its programme.
There
is nothing in the language of Article 17(2) to suggest t6t the word “operation”
is to be given any restricted meaning.
Sub‑clause
(2) of Article 17 of the Constitution which guarantees the right to form and to
become a member of a Political Party is a peculiarity of the Constitution, as
no other Constitution of the world guaranteed such a right specifically under
the Fundamental Right of freedom of Association. Specific mention of the right
to form and to become a member of a Political Party in Article 17 of the
Constitution, therefore, has to be given a special treatment in the scheme of
the Constitution. It would not be correct to equate this specific right with
the ordinary right of freedom of Association guaranteed under Article 17. In
addition to the right to form and become a member of a Political Party, the
Constitution also guaranteed Political Justice as a fundamental right, as would
appear from the Objectives Resolution, which now forms part of the Constitution
in the shape of Article 2A. The political activity of a Political Party does
not terminate with the election of its members to the Assembly as election to
Assembly is only a means and not the end for the objects of a Political Party.
The
right to form a Political Party and to become its member has been specifically
conferred by Article 17 of the Constitution. There is no other contemporary
constitutional document in’ which a right to form a ‘Political Party’ and to
become its member has been specifically guaranteed as a fundamental right under
the concept of freedom of Association. It is a well established principle of
interpretation that no surplusage or redundancy is to be attributed to the
legislature, muchless to the framers of the Constitution. The Constitution is
the basic and an organic document and therefore, every word used therein has to
be assigned some meaning. Again the Courts while interpreting a provision of the
Constitution relating to enforcement of Fundamental Right, will loan towards
its more liberal and beneficial construction. Since the right to form a
Political Party and to. become its member has been specifically guaranteed
under Article 17 of the Constitution, it has to be given specific meaning apart
from the general right of freedom of Association mentioned in Article 17. The
expression ‘Political Party’ is not defined in the Constitution. However, the
expression has been defined in section 2(c) of the Political Parties Act of
1962.
From
the language of Article 7(2) it is quite clear that not only the formation and
membership of a Political Party is within the contemplation of this Article but
its operation and functioning is also within its purview. This is quite evident
from the later part of Article 17(2) which provides that when the Federal
Government declares that a Political Party has been formed or is operating in a
manner prejudicial to the sovereignty or integrity of Pakistan, it shall refer the
matter to Supreme Court for decision.
The
operation of a political party in its ambit includes the entire political
process beginning from the formation of the party, propagation of its views on
matters of public importance, taking part in elections and when Voted to power
by a popular vote, to form the Government of its choice and to complete its
term in tile office in accordance with the provisions of the Constitution. It
needs no mention here that a long, vigorous and sustained effort is needed by a
Political Party to win public support to its programme and sometimes it may
require a lifetime effort by a Political Party to educate public opinion on
issues of public importance ‘propagated by it. Therefore, to get elected to
Assemblies and to form the Government of its choice, in the event of success,
is not only the paramount and cherished goal of every Political Party but it is
inherent in its operation and functioning.
Considering
in tile above context, the right. to form a Political Party guaranteed under
Article 17(2) of the Constitution necessarily includes in it, the right to
continue in power, if duly elected by the people, for the full tenure, subject
to other provisions of the Constitution. It, therefore, necessarily follows
that a duly elected political Government if ousted or interrupted from
continuing in power through unconstitutional means, can legitimately make a
grievance that its Fundamental Right under Article 17(2) of the Constitution
has been violated.
The
right to form a Political Party mentioned under Article 17(2) of the
Constitution necessarily implies the right of a Political Party duly voted to
power in an election, to continue as such, in accordance with the provisions of
the Constitution.
If
the petitioner, who was heading the Government of the Federation, formed by a
Political Party, on the basis of its majority in the National Assembly,
succeeded in showing that his right to continue in the Government was disrupted
or discontinued illegally and through unconstitutional means, he could
legitimately make a grievance about violation of his fundamental right
guaranteed under Article 17(2) and could also maintain the petition under
Article ‑184(3) of the Constitution before this Court to challenge the
impugned action.
Miss
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Mrs. Benazir Bhutto
v. Federation of Pakistan PLD 1.989 SC 66; Concise Oxford Dictionary; Corpus J
uris Secundum, Vols. 29, 72, pp. 107, 222 and Black’s Law Dictionary ref.
(vvvvy) Constitution or Pakistan (1973)‑‑‑
‑‑‑‑
Arts. 17(2) & 58(l.) ‑‑‑ Dissolution of National Assembly
under the advice of the Prime Minister ‑‑‑ Prime Minister as
leader of the House and as head of the Government, represents the will of the
majority of the members of the National Assembly, when he advises dissolution
of Assembly, he in fact reflects the will of the majority of the members of the
Assembly ‑‑‑ Minority, in such a situation cannot prevent
dissolution on the ground of violation of their rights.
Tile
right to continue as member of National Assembly for a period of five ‘year’s
is subject to other provisions of the Constitution including those relating ,to
its dissolution. Therefore, if the Assembly is dissolved validly in accordance
with the provisions of the Constitution, no vested right could be claimed
against such ‘an action. The right to continue as member of the Assembly would
only arise when the dissolution takes place contrary to the provisions of the
Constitution. The dissolution of Assembly on the advice of Prime Minister is
specifically provided for in the Constitution, and as such no question of
Fundamental Right of any ‑member of the Assembly being infringed by such
dissolution arises. Secondly, the Prime Minister as leader of the House and as
head of the Government, represents the will of the majority of the members of
the National Assembly. When the Prime Minister advises dissolution of Assembly,
he in fact reflects the will of the majority of the members of the Assembly.
Therefore, in such a situation the minority cannot prevent dissolution on the
ground of violation of their rights as the National Assembly without majority :
of1,.JLs,, members will otherwise become unrepresentative.
(wwwww)
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art. 58(2)(b)‑‘‑‑Parameters
within which power to dissolve the National Assembly can be, exercised by
the President under Art.58(2)(b) or the
Constitution
enumerated.
.
I The broad principles governing exercise of power by. the President under
Article 58(2)(b) of the Constitution, may be summed up as follows:‑‑‑
(i)
The President, before exercising the power under Article 58 (2)(b) of the
Constitution must form an opinion objectively that a situation has arisen in
which the Government of Federation cannot be carried on in accordance with the
provisions of the Constitution and an appeal to the electorate is necessary;
(ii)
that although the exercise of discretion vesting in the President under Article 58 (2)(b) of the Constitution is not
subject to control by the Courts, the opinion of the President must satisfy an
objective lost as nothing has been left to surmises, likes or dislikes in tile
process of opinion forming;
(iii)
that the grounds of dissolution must bear nexus to the preconditions mentioned in Article 58(2)(b) of the
Constitution;
(iv) that the opinion formed by the President
must be based on some material;
(v)
that sufficiency or otherwise of the material before the President cannot be
adjudicated upon by the Court while consider in the validity of dissolution
order passed under Article 58(2)(b) of the Constitution;
(vi)
that the Courts while commenting upon the Dissolution Order cannot substitute
their own opinion for that of the President: and
.(vii)
That the President having once validly formed the opinion that conditions
prescribed in Article 58(2)(b) of the Constitution exist, is free to exercise
the discretion one way or the other and existence of other alternate remedy in
the Constitution could not control exercise of such discretion by the President.
Federation
of Pakistan v. Haji Saifullah Khan P L D 1989 SC 106 and Khawaja Ahmed Tariq
Rahim v. Federation of Pakistan P L D 1992 SC 646 ref.
(xxxxx)
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Interpretation of Art.58(2)(b) ‑‑‑
Two objective conditions mentioned in Art.58(2)(b) of the Constitution are not
in effect one and the same ‑‑‑ Where it is shown that the
first condition, that a situation has arisen in which Of Government of
Federation cannot be run in accordance with the provisions of the Constitution,
exists in a case, the second condition, that an appeal to the electorate is
necessary will not follows as a corollary of the first condition.
The
use of conjunction “and” in between the expressions “a situation has arisen in
which the Government of Federation cannot be carried on in accordance with the
provisions of the Constitution” and “an appeal to electorate is necessary” in
Article 58(2)(b) of the Constitution, clearly indicates that the latter
condition is to be‑ added to or taken alongwith the first condition. 4and’
is used in Article 58(2)(b) in its ordinary grammatical meaning. The two conditions in Article 58(2)(b)
of the Constitution arc distinct and separate conditions and their existence as
such in a case is a sine qua non for exercise of power by the President to
dissolve the National Assembly. What arc those facts and circumstances which
justify an inference that these ‘ two objective conditions mentioned in Article’
58(2)(b) have been satisfied, must be answered with reference to the facts and
circumstances of each, and no hard and fast rule in this regard can be laid
down by the Courts.
The
expression “the Government of Federation cannot be carried on in accordance
with the provisions of the Constitution” in Article 58(2)(b)* contemplates a
situation where the affairs of the Government arc not capable of being Tun in
accordance with the provisions of the Constitution either on account of
persistent, deliberate and continued violation of various provisions of the
Constitution by the Government in power, or on account of some defect in the
structure of the Government, its functioning in accordance with the provisions
of the Constitution is rendered impossible. The use of expression “cannot be
carried on” necessarily imports an element of impossibility and disability and
refers to an irretrievable and irreversible situation. An unintentional and bona ride omission to follow a particular
provision of the Constitution, not resulting in the breakdown of Government machinery
or creating a situation of a stalemate or deadlock in the working of the
Government, will not be covered in the situations contemplated under Article
58(2)(b) of the Constitution.
Similarly,
the use of expression in Article 58(2)(b) that “an appeal to
electorate
is necessary”, implies that the Assembly has lost its representative character.
This may happen where either majority of its members have resigned or where
floor‑crossing and ‘horse‑trading’ by the members of the Assembly
has become the order of the day, or there are other very strong circumstances
suggesting that the electorate no more reposed confidence in the policies of
the Government. The examples, referred above are, however, by no means
exhaustive and there may be other facts and circumstances which may justify
inference that a situation has arisen in which the Government of Federation
cannot be carried on in accordance with the provisions of the Constitution and
an appeal to the electorate is necessary.
It
is, therefore, not correct to say that the two objective conditions mentioned
in Article 58(2)(b) of the Constitution arc in effect one and the same, and
where it is shown that the first completion, that a situation has arisen in
which the Government of Federation cannot be run in accordance with the
provisions of the Constitution, exists in a case, the second condition, that an
appeal to the electorate is necessary, will follow as condition.
Federation
of Pakistan v. Muhammad Saifullah Khan P L D 1989 SC
166
and Khawaja Ahmed Tariq Rahim v. Federation of Pakistan P L D 1992 SC 646 ref.
a
corollary of the first
(yyyyy)
constitution or Pakistan (1973)‑‑‑
‑‑‑‑
Arts. 54 & 58 ‑‑‑ Exclusive power enjoyed by the Speaker
to prorogue the session of National Assembly summoned by him under Art.54(3) is
not at all determinative of the power of the President to dissolve the Assembly
under Art .M of the Constitution ‑‑‑ Fact that Assembly is in
session or that its session has been called or that it is not in session has no
bearing on the exercise of the power of dissolution under Art.58 of the
Constitution.
The
exclusive power enjoyed by the Speaker to prorogue the session of National
Assembly summoned by him under Article 54 (1) is not at all determinative of
the power of the President to dissolve the Assembly under Article 58 of the
Constitution. The power to dissolve the National Assembly under Article
58(2)(b) is undoubtedly a distinct and separate Constitutional power which is
neither subordinate to nor controlled by
the provisions of Article 54 of the Constitution. There is nothing in the
language of Article 54 or Article 458 or in any other provision of the
Constitution to suggest or indicate that When a session of the National
Assembly is summoned either by the President himself (Article 54(l)) or by the
Speaker (Article 54(3)), the power to dissolve the National Assembly will not
be exercised by the President under Article 58 of the Constitution or that the
power of President to dissolve the National Assembly will remain suspended or
dormant until the session of the National Assembly summoned under Article 54 is’
prorogued. The power to dissolve the Assembly under Article 58 4 the
Constitution is an I ‘independent and distinct power which can be exercised at
any i I tine after the Ass6im6ry is
formally
opened. The fact that Assembly is in session or that it’s session has been
called or that it is not in session has’ no bearing on the exercise of the
power of dissolution under Article 58 of the Constitution. [p. 80410 (zzzzz)
Evidence‑Press reports ‑‑‑ Evidentiary value
It
is true that Press reports are not to be accepted as proof of facts stated
therein but where such reports were ‑not contradicted by’ the concerned
authority or person at the relevant time and are subsequently relied by either
side in a case, these may be taken into consideration for forming an opinion
generally as to the prevailing state of affairs at the relevant time.
(aaaaaa)
constitution of Pakistan:
‑‑‑‑
Art. 64 ‑‑‑ Rules of Procedure and Conduct of Business in the
National Assembly, 1992, R.25 ‑‑‑ Resignation by a Member of
National Assembly‑‑ Procedure to be followed for a resignation to
be constitutionally valid.
. Article 64 of the Constitution
provides that a member of Parliament may by writing under his hand addressed to
the Speaker or as the case may be, to the Chairman, resign his scat and
thereupon his seat shall become vacant. Article 64 of the Constitution is to be
read with Rule 25 of the Rules ‘of Procedure, and Conduct of Business in the
National Assembly, 19( )2.
The resignation of a member of
National Assembly according to the provision contained in Article 64 and Rule
215 Of the Rules of Procedure and
provisions contained Conduct of Business Rules, 1992 must be addressed, to the
speaker and written under the hand of the member concerned. resignation may be handed over personally by the member
concerned to the speaker and at that time he may inform the Speaker that it is
voluntary and genuine and if the Speaker has no information or knowledge to the
contrary, his scat becomes vacant immediately. In case, the Speaker receives
the letter of resignation by any,
other
means he may either hold enquiry himself or through ‑the National
Assembly Secretariat or through any other agency regarding genuineness and
voluntary nature of the resignation and as soon as the Speaker is satisfied
that the resignation is genuine and voluntary, it becomes effective. According
to sub‑rule (4) of Rule 25, the date of resignation shall be the date
mentioned in the resignation letter and if no date is specified therein, the
date of resignation will be the date on which the resignation is received by
the Speaker. As soon as the, resignation becomes effective a notification is to
be issued of the Secretariat of the ,Speaker in the Gazette and a .copy thereof
is to be sent to .the Chief Election’ Commissioner for taking steps to, fill up
the vacancy. Therefore, for a, resignation to be, constitutionally. valid, the
above procedure has to be followed. In the proceeding case, majority of the resignation, ,did not bear an
date.
These resignations, though addressed to
the Speaker of National Assembly were received by the President who had no
authority under the Constitution to receive them. These resignations received‑by
the President in spite of passage of considerable time were not forwarded to
the Speaker of National Assembly.
These
resignations had no Constitutional validity or value and as such it was not
possible on the basis of these documents to arrive at the conclusion that the
National Assembly had lost its representative character.
(bbbbbb)
Precedent.
‑‑‑‑
Mere similarity in the words .or phraseology can neither be a determinative’
factor nor a test for identity of the substance of the grounds in the two cases.
(cccece)
Constitution of Pakistan (1973)‑
‑‑‑‑
Art.. 56.‑:‑Rulcs of Procedure and Conduct of Business in National
Asscmbly,.!992’,’Rr’.46 t 47‑‑Address of the President to the
joint session of duty under, Art.56(3)
of the Constitution ‑‑‑ President, in his such address is not
bound by the policy or view of the Government in power ‑‑‑
President is free to express his own views and assessment in respect of
any matter concerning the functioning
of the Government in power in his address to the Joint ‘session of Parliament..
. . . . . . . . . . . . . . .
There
is nothing either in Article 56 of the Constitution or in Rules 40 to 47 of the
Rules of Procedure and Conduct of Business in National Assembly, 1992, to
suggest, that address of the President to the joint session of the two Houses
at the commencement of the first session after each general election to the
National Assembly and at the commencement of the first session year, would
reflect the policies of the Government and not the views of the President. The
address of the President to the joint session of Parliament on the occasion of
first session of each year, is his Constitutional duty under Article 56(3) of
the Constitution and in his address’ the President is not bound by the policy,
or views of the Government in power. The President is free to express his own
views and assessment in respect of any matter concerning the functioning of the
Government in power in his said address to the joint session of Parliament.
(dddddd) Constitution of Pakistan (1973)‑‑
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National. Assembly and
dismissal of Prime Minister and the Cabinet by the President ‑‑‑
Validity ‑‑‑ Main concern‑of the Court is to discover
whether there was such deliberate, pervasive and continued violation of various
provisions of the Constitution by the Prime Minister’s Government that it led
to the impression that the Government of Federation was not run in accordance
with the provisions of the Constitution but by extra‑Constitutional
methods.
(eeeeee)
Constitution of Pakistan (1971)‑
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Order of dissolution of Assembly by the
President unless is found to he based on some relevant ground,,, such grounds
will not be relevant ‑‑‑ Grounds which are vague and
unsupported by any material and bearing no nexus to the preconditions do not
satisfy the requirements of Art.58(2)(b).
(fffff)
Constitution of Pakistan (1973)‑‑
‑‑‑‑
Art. 91(4) ‑‑‑ Cabinet ca n act only through the Prime
Minister ‑‑‑ Concept of .collective responsibility of Cabinet
has made the role of Ministers individually of, no consequence under the
Constitution.
On
the Constitutional plane, Article 91 of the Constitution provides that there
shall be a Cabinet of Ministers with Prime Minister at its head, to aid and advise
the President in the exercise of his functions. Clause (4) of Article 91
provides that the Cabinet together with Ministers of State shall be
collectively responsible to the National Assembly. These provisions in the
Constitution make it abundantly clear that the Cabinet including the Ministers
of State are collectively responsible to the National Assembly and in aiding
and advising the President in discharge of his functions, the Cabinet can act
only through the Prime Minister. The concept of collective responsibility of
Cabinet has made the role of Ministers individually of no consequence under the
Constitution.
(gggg) constitution of Pakistan (1973)‑
‑‑‑‑
Arts. 41 & 91 ‑‑‑ Positions of the President and the
Prime Minister in the Constitutional Scheme.
The
President is elected under Article 41 of the Constitution through an electoral
college, consisting of members of the two Houses of Parliament and four
Provincial Assemblies. Articles 48,90 and 91 of the Constitution spell out the
extent of power to be exercised by the President under the Constitution.
On a careful examination of
Articles 48, 90 and 91 of the Constitution it is quite clear that the President
in discharge of his functions under the Constitution has to act on the advice
of Prime Minister or the Cabinet, except in those cases where he is
specifically authorised by the Constitution to act in his discretion. The
discretionary powers of the President under the Constitution are limited to the
extent of making a few appointments to the high Constitutional offices, besides
his power to dissolve the National Assembly (Article 58(2)(a) and (b)), to
refer a matter of national importance to
referendum
(Article 48(6)) and to fix a date for election within 90 days on dissolution of
National A.5sembly and to appoint a Caretaker Cabinet (Article 48(5)). Besides
the above discretionary powers of the President under the Constitution, the
Prime Minister is constitutionally bound to communicate to the President all
decisions of the Cabinet relating to the administration of
the
affairs of Federation and proposal for legislation (Article 46(a)). The
President may also call for from the Prime Minister any information relating to
the administration of the affairs of the ‑ Federation and may also
require for ‑ submission to the Cabinet for consideration any matter on
which a . decision has been taken by the Prime Minister or a Minister but not
considered by the
Cabinet
(Article 46(b) and (c~). The President also has the right to address either House or both the Houses of Parliament
(Article 56(1)) besides his right to send messages to either House and the
matter contained in such messages to be considered by the House (Article
56(2)). At the commencement of first session of National Assembly after general
elections and at the commencement of first session of each year, the President
has the right to address the joint
session
of the two Houses of Majlis‑e‑Shoora
(Parliament) Article 56(3)). It is quite significant that under Article 91.(4)
of the Constitution, the Cabinet together with Ministers of State is
collectively responsible to the National Assembly alone. It is also very
important to note that although the Prime
Minister
holds the office at he pleasure of the
President but this pleasure cannot be exercised by the President so long as the
Prime Minister commands the confidence of the majority of the members of the
National Assembly and in order to ascertain whether the Prime Minister has lost
the confidence of the majority of the members of the National Assembly, the
President is obliged to summon a session of National Assembly and’ ask the
Prime Minister to seek a vote of confidence from the Assembly (Article 91(5)).
From the above‑stated Constitutional position, there remains no room for
any doubt that the Prime Minister in running the affairs of the Government is
nether answerable to President nor in that capacity he is subordinate to the
President. In formulating the policies of his Government and running its
affairs the Prime Minister under the Constitution is answerable only to the
National Assembly and the President has no constitutional role in* this behalf.
The President in all such matters is bound by the advice of Prime Minister or
the Cabinet. No doubt, President may require
the Cabinet or the Prime Minister, as the case may be, to reconsider any
advice tendered to him but the President is bound to act on the advice tendered
after re‑consideration.
The
President and the Prime Minister have defined roles under the Constitution
which do not overlap. They exercise powers in their respective constitutional
domain unhindered and uninterrupted by each other. No doubt, constitutionally
it would be an ideal situation where both the President and the Prime Minister
have identity of views on matters concerning the affairs of the Federation but
ideals do not exist in reality as they are outcome of imagination. two top
offices on any issue should not cause any stirring or ‑alarm as in spite
of different perceptions, personal likes or dislikes ‘the two can co‑exist
issue in discharge of their constitutional obligation, both the President and
Prime Minister arc bound to act within the limitations Imposed on them by the
Constitution and their personal feelings, likes or dislikes cannot override the
constitutional mandate. One should have in mind that the method of election
provided under the Constitution for these two top offices, also foresees a
possibility that the holders of these two top posts may not belong to the same
political party. Therefore, possibility of a play in the relationship between
the holders of these two top posts cannot be ruled out.
No doubt, the President as the
symbol of the ‘ unity of Federation occupies a neutral position in the
Constitution, and, in that capacity he is entitled to highest respect and
regard by all the functionaries of the State. But it is equally important that
in order to protect and preserve the dignity of this high office and this
neutral image under the Constitution the President must keep aloof Quran all
political imbroglio. If the President is unable to ward off the temptation ‑to
keep away from, political game or he starts siding with one or the other
political element in the Assembly, he is likely to lose his image as the
neutral arbiter in national affairs and as a symbol of unity of Federation
under the Constitution. In the latter event, his conduct may also come under
criticism from those who may feel betrayed.
Z (hhhhhh) Constitution or Pakistan (1973)‑‑‑
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly and
dismissal of‑Prime Minister and the Cabinet by the President under
Art.58(2)(b), inter alia, on the ground of speech by the Prime Minister on 17th
April, 1V)3 ‑‑‑ Held, Prime Minister’s speech first
listed the achievements of his Government, then referred to the conspiracies to
destabilise his Government by political elements hostile to him by using the
high office of Presidency, and finally he expressed his determination and
resolve not to give in to these pressures ‑‑‑ Reaction of
Prime Minister’s shown by him in his speech in the circumstances prevailing at
the relevant time was neither unnatural nor unjustified ‑‑‑
Speech of the Prime Minister, however, did not have the effect of creating any
deadlock o stalemate in the working of the Government of Federation warranting
action of the President under Art.58(2)(g).
(iiiiii) ConstitUtion of Pakistan (1973)
‑‑‑‑Art.
58(2)(b) ‑‑‑ Dissolution of National Assembly and dismissal
of Prime Minister and the Cabinet under Art.58(2)(b) of the Constitution by the
President of Pakistan vide Order dated 18th April, 1993 ‑‑‑
Said Order, held, neither collectively nor individually justified the
inference that a situation had arisen in which the Government of Federation
could not be carried on in accordance with the provisions of the Constitution
and an a6eal to the electorate was necessary.
(UW)
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑
Art. 58(2)(b) ‑‑‑ Dissolution of National Assembly under
Art.58(2)(b) by the President ‑‑‑ Held, Court in
considering the grounds of dissolution is not concerned with the pace of
progress, the shade of the quality or the degree of the performance or quantum of achievement but
is only concerned with the breakdown of. the Constitutional mechanism, a
stalemate, a deadlock in ensuring the observance of the provisions of the
Constitution.
Yahya
Bakhtiar, Senior Advocate Supreme Court, Khalid Anwar Advocate Supreme Court,
Khalid M. Ishaque, Zakiuddin Pal, Aftab Farrukh, Muhammad Farooq, Raja Muhammad
Akrarn Senior Advocates Supreme Court, M. Akram Sheikh, Ashtar Ausaf Ali, Mian
Saqib Nisar, Advocates Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record
for Petitioner.
Aziz
A. Munshi, Attorncy‑Gencral for Pakistan, Malik Akhtar Hussain Awan,
Advocate Supreme Court, Maqbool Elahi Malik, A.‑G. Punjab, Faqir Muhammad
Khokhar, Dy. A.‑G., Ch. Ijaz Ahmad, Dy. A.‑G., M. Zahoorul Haq,
Senior Advocate Supreme Court, Makhdoorn Ali Khan, Advocate Supreme Court and
Ch. Fazic Hussain, Advocate‑on‑Record for Respondents Nos. 1 and 2.
S.M.
Zafar, Senior Advocate Supreme Court, Syed Zahid Hussain, Advocate Supreme
Court ‑ and Ch. Fazle Hussain, Advocate‑on‑Record ‑ for
Respondent No.3.
Raja
Muhammad Afsar, A.‑G. Balochistan, A.G. Mangi, Addl. A.‑G Sindh, M.
Sardar Khan, A.‑G., N.‑W.F.P. and Maqbool Elahi Malik, A.‑G
Punjab on Court’s Notice.
Dates
of hearing: 26th April; 8th to 12th and 15th to 26th May, 1993
JUDGMENT
NASIM HASAN SHAH, CJ.‑‑‑On
the evening of 17th April, 1 1993, Mian Muhammad Nawaz Sharif, Prime Minister
of Pakistan addressed the Nation on the National Radio and Television Networks.
It was an emotional address wherein he alleged, inter alia, that disgruntled
political elements were working against his Government, hatching conspiracies
to destabilise it and
trying
to undo all the good work he was trying to do. All this, he alleged, was being
done under the patronage of the President of Pakistan. He ended his speech with
the following challenging words:‑
“I
will not resign will not dissolve the National Assembly; and will not be
dictated.”
On
the evening of 18th April, 1993, barely 24 hours after this emotional and
challenging address was delivered, the President of Pakistan called a Press
conference at Aiwan‑i‑Sadar (President’s House) and declared that
the speech of the Prime Minister of the previous evening and other acts of his
Government had convinced him that the Government of the Federation could not be
carried on in accordance with the provisions of the Constitution. He had,
accordingly, in exercise of the powers conferred on him under Article 58(2)(b)
of the Constitution, ordered the dissolution of the National Assembly,
dismissed the Prime Minister and his Cabinet and called for General Elections
in the country. A Care‑taker Cabinet was immediately sworn in the same evening,
which was later expanded to include 62 Ministers.
A
week later, the dismissed Prime Minister (Mian Muhammad Nawaz Sharif) moved
this Court under its Original Constitutional Jurisdiction under Article 184(3)
of the Constitution, on 25th April, 1993, praying that the order of dissolution
dated 18‑4‑1993 be declared mala fide, without lawful authority,
null and void and of no legal effect and all steps taken in implementation of
or taken as result or the aforesaid order of dissolution including the appointment
of the Care‑taker Cabinet be also declared as null and void. It was
further prayed that the respondents be restrained from interfering with the
functions and duties of the elected Government headed by him and no impediments
be placed in the functioning of the National Assembly.
The
petition came up for preliminary hearing the next day viz. the 26th April, 1993
before a Full Bench of the eleven Permanent Judges of this Court. Herein, the
Attorney‑General of Pakistan raised a preliminary objection to the effect
that the petition filed under Article 184 of the Constitution directly before
the Supreme Court was not maintainable and was liable to be dismissed on this
short ground.
The
Court, after hearing the reply of the learned counsel for he petitioner on this
point proceeded to join the preliminary objection (regarding A the
maintainability of the petition) with the questions arising on merits and
observed that both of these questions shall be heard and decided together. The
matter was adjourned for full and final arguments to 8th May, 1993; the parties
being directed to complete the records in the meanwhile.
Accordingly,
the learned counsel of the parties have been fully heard. Two questions in the
main arise for decision in this case, namely:‑‑
(1) Is this petition
under Article 184(3) of the Constitution maintainable?
and
(2) If so, has the President exceeded the
powers conferred on him under clause (b) of Article 58(2) of the Constitution
in ordering the dissolution of the National Assembly?
My
learned brother Shaflur Rahman, J. in his well‑considered judgment, which
has already been circulated to all of us and which I have had the privilege to
peruse, has answered both these questions in the affirmative. I respectfully
and entirely agree with the answers returned by him. However, in view of the
importance of the questions raised in this petition I consider it appropriate
to also say a few words of my own.
The
first question, which requires consideration, is as to whether this petition
could be riled directly in this Court and it is maintainable before us? This
question was, indeed, raised as a preliminary objection by the learned Attorney‑General
and must, therefore, necessarily be examined and answered in the first
instance.
Article
184(3) of the Constitution, which has been invoked by the petitioner, lays
down:
“184.‑‑(l)………………..
(2)………………………
(3)
Without prejudice to the provisions of Article 199, the Supreme Court shall, if
it considers that a question of public importance with reference to the
enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11
is involved, have the power to make an order of the nature mentioned in the
said Article.”
In
support of his preliminary objection, the learned Attorney‑General, Mr.
Aziz A. Munshi, submits that this Constitutional Petition purporting to seek
the enforcement of Fundamental Right 17 under Article 184(3) of the
Constitution is not maintainable because Fundamental Right 17 merely guarantees
the right to form a political party and the right to be a member of a political
party and no more. However, the petitioner in his petition is not complaining
that he is being prevented from forming a political party or from being a
member thereof. His grievance is that even though the tenure of his office has
not expired he is being deprived of the right to continue as Prime Minister on
account of the unlawful order of dismissal of his Government. The learned
Attorney‑General submits that redress for such a grievance is not through
the enforcement of Fundamental Right 17 but by invoking other provisions of the
Constitution. Elaborating this submission, it is submitted that Fundamental
Right 17 is not attracted because the matter of the formation of a Government
is provided for in Article 91; while the tenure of the National Assembly is
provided for in Article 52 subject to the hazard of its premature curtailment,
on account of its dissolution under Article 58 of the Constitution.
Learned
counsel for respondent No.3, ‘Mr.S.M. Zafar, has also supported this objection.
According to him, although the question raised in this petition satisfies the
first part of the condition laid down in Article 184(3) namely that it should
involve a question of public importance but, according to this Article, the
question should also have reference to the enforcement of some Fundamental
Right. But the question raised herein has no reference to the enforcement of
any Fundamental Right. In this connection, the submission is that Fundamental
Right 17 is not attracted because its scope can, at best, extend to all acts
culminating in the election of a member of a political party to the National
Assembly’. Once having been so elected he becomes vested with certain legal and
political rights which can undoubtedly be enforced under the law. However,
Fundamental Right 17 is not available to protect them. According to Mr. S. M.
Zafar, the right of a member of a political party elected to a legislative
assembly and to continue as such has been conferred on him, by a specific
provision of the Constitution and in case of any unlawful interference
therewith it can be redressed by recourse to the High Court under Article 199
of the Constitution by seeking an appropriate writ. Accordingly, as in the
present case, where the petitioner complains that he has been deprived of his
right to continue as a member of the National Assembly, the violation
complained of is not of any of his Fundamental Right but only of a political or
a legal right. In short, the submission is that though political parties and
their members can move the Supreme Court directly if any of their Fundamental
Rights is infringed it is not possible in this case because Fundamental Right
17 is available only against actions preventing its members from forming a
political party or from contesting elections to the Assemblies and not
available to them after they have become., members of the elected body. Having
once reached there all rights inhering in them, as such members, like the right
of tenure, are enforceable only by recourse to the provisions of Article 199 of
the Constitution, namely, through a writ petition in the High Court.
Mr.
Khalid Anwar, learned counsel for the petitioner and Dr. Farooq Hassan have
been heard in reply.
The
relevant part of Fundamental Right 17 reads as under:.
(2)
Every citizen, not being in the Service of Pakistan, shall have the right to
form or be a member of a political party, subject to any reasonable
restrictions imposed by law in the interest of the sovereignty or integrity of
Pakistan and such law shall provide that where the Federal Government declares
that any political party has been formed or is operating in a manner
prejudicial to the sovereignty or integrity of Pakistan, the Federal Government
shall, within fifteen days of such declaration, refer the matter to the Supreme
Court whose decision on such reference shall be final.”
I
do not think that the preliminary objection that this petition is not
maintainable can be sustained.
Fundamental
Rights in essence are restraints on the arbitrary exercise of power by the
State in relation to any activity that an individual can engage. Although
Constitutional guarantees are often couched in permissive terminology, in
essence they impose limitations on the power of the State to restrict such
activities. Moreover, Basic or Fundamental Rights of individuals which
presently stand formally incorporated in the modern Constitutional documents
derive their lineage from and are traceable to the ancient Natural Law. With the
passage of time and the evolution of civil society great changes occur in the
political, social and economic conditions of society. There is, therefore, the
corresponding need to re‑evaluate the essence and soul of the fundamental
rights as originally provided in the Constitution. They require to be construed
in consonance with the changed conditions of the society and must be viewed and
interpreted with a vision to the future. Indeed, this progressive approach has
been adopted by the Courts in the United States and the reason given for doing
so is that:‑‑
“While
the language of the Constitution does not change, the changing circumstances of
a progressive society for which it was designed yield a new and fuller import
to its meaning: (Hurtade v. California ‑‑ 110 U.S. 516).
it
is on this principle of interpretation that the import of the rights given in
the U.S. Constitution such as the “right of Assembly and the “right of
Association”, has been so expanded and so enlarged by the U.S. Supreme Court
that even peripheral rights (or rights of penumbra as described in some
judgments i.e. rights so closely associated to the basic right which is
specifically given in the Constitution) are now being also enforced as basic
rights.
This
progressive approach has also found favour with this Court and has been
endorsed by it. Speaking for the Court, the learned Chief Justice (Muhammad
Haleem, CJ.) observed in Benazir Bhutto’s case (PLD 1988 SC 416 at page 490) as
under:‑‑
‘The
liberties, in this context if purposefully defined will serve to guarantee
genuine freedom, freedom not only from arbitrary restraint of authority, but
also freedom from want, from poverty and destitution and from ignorance and
illiteracy ‑‑‑‑‑‑‑‑‑ This
approach is in tune with the era of progress and is meant to establish that the
Constitution is not merely an imprisonment of the 12ast, but is also alive to
the unfolding‑ of the future”. (Emphasis supplied).
In
consonance with this progressive approach, it was held in this case that the
right conferred by Article 17 includes not merely the right to form a political
party but comprised also other consequential rights.
This
approach was again in evidence in the Symbol’s case (PLD 1989 SC 66) wherein it
was observed that the “Fundamental Right” conferred by Article 17(2) of the
Constitution whereby every citizen has been given “the right” to form or to be
a member of a political par‑y comprises the right to participate in
and contest an election” (see page 75 of the Report).
Indeed,
even earlier this Court had observed in Maudoodi’s case PLD 1964 SC 673 that “forming
of associations necessarily implies carrying on the activities of an
association for the mere forming of ‑association would be of no IG avail”
(see page 764 of the Report). It was also observed in the same case, that I “the
ordinary conception of a political party includes a right within the framework
of the Constitution to exert itself through its following and Organization, and
using all available channels of mass communication, to propagate its view in
relation to the whole complex of the administrative machine, including the
Legislatures, in respect of matters which appear to it to require attention.
for the amelioration of conditions generally throughout the nation, for
improvements particularly in administrative procedures and policies as well as
in the legislative field, even to the extent of proposing and pressing for
amendment of the Constitution itself” (see page 692 of the Report).
Actually,
the objection being raised by the learned counsel for the respondents before us
here stands practically answered already in Benazir Bhutto’s case PLD 1988 SC
416. It was herein, inter 41;.a, also observed:‑‑
“Reading
Article 17(2) of the Constitution as a whole it not only guarantees the right
to form or be a member of a political party but also to operate as political
party ... ... ... ... .. Again, the forming of a political party
necessarily implies the right of carrying on of all its activities as otherwise
the formation itself would be of no consequence. In other words, the
functioning is implicit in the formation of the party” (see page 511 of the
Report).
In
a ‑subsequent passage (at page 541) this aspect was commented upon as
folilows:‑‑
“it
(Article 17(2)) provides a basic guarantee to the citizen against usurpation of his will to freely participate in
the affairs and of Pakistan through
political activity relating thereto.” (Emphasis supplied).
Thus,
in the scheme of our Constitution, !he guarantee to form political party must
be deemed to comprise also the right by that political party to form the
Government, wherever the said political party possesses the requisite majority
in the Assembly. AS was explained by Chief Justice Muhammad Haleem in the same
Judgment:-
“Our
Constitution is of the pattern of parliamentary democracy with a Cabinet system based on party system as
essentially it is composed of the representatives of a party which is in
majority ….. It is a party
system that converts the results of a Parliamentary election into a Government.’
Accordingly,
the basic right “to form or be a member of a political party’ conferred by Article 17(2) comprises
the right of that political party not only to form’ a political party, contest
elections under its banner but also, after successfully contesting the
elections, the right to form the Government if its members, elected to that
body, are in possession of the requisite majority. The Government of the
political party so formed must implement the programme of the political party
which the electorate has mandated it to carry into effect. Any unlawful order
which results in frustrating this activity, by removing it from office before
the completion of its normal tenure would, ‘therefore, constitute an
infringement of this Fundamental Right.
In
this connection, the interpretation of the word “Operating’ in Article 17(2)
given by my learned brother Shafiur Rahman, J. further clarifies this aspect of
the matter. He has rightly pointed out that the term “operating” includes both
healthy and unhealthy operation of a political party. While Article 17 contains
limitations and checks against unhealthy operation of the political party; no
provision exists therein in relation to its healthy operation. However, the
mere omission to make any specific provision in regard to this aspect does not
imply that Fundamental Right 17 does not also comprise this aspect of the
matter. Indeed, a positive right implies, as part of the same right, a negative
right and vice a verse (see the views of Jeckson, J. for the majority and
Murphy, J. concurring in West Virginia State Board of Education v. Barnette
(1942) 319 U.S. 624. Hence, if the lawful functioning of a Government of
political party is frustrated (by its dismissal) by an unlawful order, such an
order is an impediment in the healthy functioning of the political party and
would, therefore, constitute an ‘infringement of the fundamental right
conferred by Article 17(2). A petition under Article 184(3) for its enforcement
would, accordingly, be maintainable.
In
this view of the matter, the submission of the learned Attorney‑
General
that rights guaranteed under Article 17(2) extend only to the right to 0 form a
political party and the right to become a member of a political party or for
that matter the submission of Mr. S. M. War that the right guaranteed under
Article 17(2) extends only to all the political processes culminating in the
election of its member to the National Assembly and no more cannot therefore be
accepted. The preliminary objection, accordingly, fails and is rejected.
Coming
now to the second question requiring adjudication, namely, whether the
President in ordering the dissolution of the National Assembly exceeded the
power conferred on him under clause (b) of Article 58 of the Constitution, it
is appropriate that the terms of this provision be clearly comprehended.
Article
58(2)(b) provides:
“58.‑‑(l)
The President shall dissolve the National Assembly if so advised by the Prime
Minister; and the National Assembly shall, unless sooner dissolved, stand
dissolved at the expiration of forty‑eight hours after the Prime Minister
has so advised.
(2) Notwithstanding anything contained in
clause (2) of Article 48, the President may also dissolve the National
Assembly in his discretion where, in his opinion‑
(a) …………………………….
(b) a situation has arisen in which the
Government of the Federation cannot be carried on in accordance with the
provisions of the Constitution and an appeal to the electorate is necessary.”
The
order passed to dissolve the National Assembly was in the following terms:‑‑
“Order
of Dissolution
The
President having considered the situation in the country, the events that have
taken place and the circumstances, the contents and consequences of the Prime
Minister’s speech on 17th April, 1993 and among others for the reasons
mentioned below is of the opinion that the Government of the Federation cannot
be carried on in accordance with the provisions ‑of the Constitution and
an appeal to the electorate is necessary”
The
circumstances that were taken into consideration by the President for forming
the opinion “that the Government of the Federation cannot be carried on in
accordance with the provisions of the Constitution and an appeal to the
electorate was necessary” were then recounted.
The
operative part of the Order was expressed in these words:‑‑
“Now,
therefore, 1, Ghulam Ishaq Khan, President of the Islamic Republic of Pakistan in exercise of the powers conferred
(in me by clause (2)(b) of Article 58 of the Constitution of the Islamic
Republic of Pakistan and all other
powers enabling me, hereby dissolve the National
Assembly with immediate effect; and dismiss the Prime Minister and the Cabinet
who shall cease to hold office forthwith.
(Sd.)
Ghularn Ishaq Khan,
President.”
Islamabad 18th April, 1993.
My
learned brother Shaflur Rahman, J. has examined each and every ground adduced
in support of the impugned order and after carefully analysing the gravamen of
each ground found that not one of them can validly be relied nexus upon to
sustain the order of dissolution as none
of them has any direct nexus with the conditions which are the prerequisite for
the exercise of the powers under clause (b) of Article 58(2) of the
Constitution. This Court in the case of Haji Muhammad Saifullah PLD 1989 SC 166
has held that the grounds and material which form the basis of the order of
dissolution are open to scrutiny and judicially reviewable, observing in this
connection:‑‑
“The
discretion conferred by Article 58(2)(b) of the Constitution on the President
cannot, therefore, be regarded to be an absolute one, but is to be deemed to be
a qualified one, in the sense that it is circumscribed by the object of the law
that confers it.
it
must further be noted that the reading of the provisions of Articles 48(2) and
58(2) shows that the President has to first form his opinion, objectively and
then, it is open to him to exercise his discretion one way or the other i.e.
either to dissolve the Assembly or to decline to dissolve it. Even if some
immunity envisaged by Article 48(2) is available to the action taken under
Article 58(2) that can possibly be only in relation to the exercise of his
discretion but not in relation to his ‘opinion’. An obligation is cast on the
President by the aforesaid Constitutional provision that before exercising his
discretion he has to form his ‘opinion’ that a situation of the kind envisaged
in Article 58(2)(b) has arisen which necessitates the grave step of dissolving
the National Assembly. In Abul A’la Maudoodi v. Government of West Pakistan PLD
1964 SC 673 Cornelius, CJ while interpreting certain provisions of the Criminal
Law Amendment Act, 1908, construed the word ‘opinion’ as under:‑‑
‘ it is a duty of
Provincial Government to take into consideration all relevant facts and
circumstances. That imports the exercise of an honest judgment as to the
existence of conditions in which alone the opinion may be formed, consequent
upon which the opinion must be formed honestly, that the restriction is
necessary. In this process, the only element which I rind to possess a
subjective quality as against objective determination, is the final formation
of opinion that the action proposed is necessary. Even this is determined, for
the most part, by the existence of circumstances compelling the conclusion. The
scope for exercise of personal discretion is extremely limited ... ... ... ...
‑‑‑
‑ ‑‑‑ ‑‑‑ ‑‑‑....
... ... ... ... ... As I have pointed out, if the section be construed in a
comprehensive manner, the requirement of an honest opinion based upon the
ascertainment of certain matters which are entirely within the grasp and
appreciation of the Governmental agency is clearly a prerequisite to the
exercise of the power. In the period of foreign rule, such an argument, i.e.
that the opinion of the person exercising authority is absolute may have at
times prevailed, but under autonomous rule, where those who exercise power in
the State are themselves citizens of the same State, it can hardly be
tolerated.
Thus,
though the President can make his own assessment of the situation as to the
course of action to be followed but his opinion must be founded on some
material. In the present case, the President himself chose to state the grounds
on which he was basing his action. As the grounds have been disclosed their
validity can be examined.”
Coming
to the present case, doubtless the main reason which induced the President to
dissolve the National Assembly was the speech delivered on 17th April, 1993 by
the Prime Minister. Indeed that this was so was practically conceded by the
learned Attorney‑General before us. But, according to him, the speech of
the Prime Minister amounted to a subversion of the Constitution, that it was
nothing short of a call for agitation against the Head of the State; that in
any case no rapport.was possible between the President and the Prime Minister
after such a speech and the relations between the two highest executive
authorities in the State became so gravely strained that it was not possible
for them to work in harmony thereafter. This stalemate, this deadlock between
the two highest Constitutional functionaries in the State rendered the carrying
on of the Federation ip accordance with the provisions of the Constitution
impossible. Hence, the President had no alternative but to dissolve the
National Assembly, dismiss the Prime Minister and his Cabinet and call for
fresh general elections. This he was entitled to do under the powers conferred
on him under Article 58(2)(b) and that he had exercised these powers legally
and properly.
Although
we can understand the point of view of the President, as presented before us by
the learned Attorney‑General, we cannot subscribe to it. In our opinion
it proceeds on an incorrect appreciation of the role assigned to him in the
Constitution and of the powers vested in him after the amendment made In the
Constitution of 1073 by the Constitution (Eighth Amendment) Act, 1985
introduced in the Constitution of 1973 shortly before its revival on 30th
December, 1985.
Under
the 1973 Constitution, as originally enacted the President, in the performance
of his functions, was to act in accordance with the advice of the Prime
Minister and ‑his advice was binding on him. indeed, the orders of the
President required the counter‑signature of the Prime Minister for their
validity (Article 48). The National Assembly could be dissolved only if so
advised by the Prime Minister and the President himself had no power to order
its dissolution under any circumstances (Article 58). The executive authority
of the Federation was no doubt to be exercised in the name of the President but
this was to be done by the Federal Government consisting of the Prime Minister
and the Federal Ministers, through the Prime Minister who was to be
the
Chief Executive of the federation.[Article 90(l)”.
The
powers of the Prime Minister under the 1973‑Constitution were indeed
transcendental and no check or control was provided over them. Undoubtedly,
under the Constitution ,,the President was the Head of the State and
represented the unity of the Republic (Article 41). But, in fact, he was no
more than a Constitutional Head. All the responsibility of the administration
was conferred on the, Prime Minister and in the discharge of his functions the
President could only act in accordance with his advice. Indeed every order
passed by him required his counter‑signatures for its validity. This
total concentration of powers in the hands of the Prime Minister ultimately
proved to be a liability for the smooth running of the Constitution.
On.
March 7, 1977, general elections were
held in the country. However, as soon as the results of the elections were
announced practically the whole country rose in protest against them, being,
convinced that they were manipulated and the outcome of massive rigging. The
working of the Government came to a standstill. The main demands of the
opposition parties involved in the agitation were that the Prime Minister
should go, the National Assembly should be dissolved and fair and free
elections be held afresh. The Prime Minister was not, however, prepared to
dissolve the National Assembly and under the Constitution it was be. and he
alone who could get the National
Assembly
dissolved. To overcome this impasse and to remedy the situation the army
decided to interven6 and on 5th of July, 1977 imposed Martial Law. This
intervention ostensibly was for a temporary period (for the limited purpose of
arranging free and fair elections, so as to enable the country to return to a
democratic way of life but, in point of fact, lasted for 8‑1/2 years).
This
tragedy,
many people thought, could have been avoided if the President had also been
vested, in exceptional circumstances, with the power of dissolving the National
Assembly.
Accordingly,
this deficiency, amongst others, was sought to be remedied when the 1973
Constitution (which was suspended on the imposition of Martial Law) was being
revived in 1985 and to this end clause (2) added to Article 58 by the
Constitution (Eighth Amendment) Act, 1985.
The
full background of the terms in which Article 58(2) of the Constitution finally
emerged is given in the judgment of this, Court in Haji Muhammad Saifullah’s
case PLD 1989 SC 166. it would be relevant to reproduce some part thereof
thereunder‑
“In
the Revival of the Constitution of 1973 Order, 1985 (President’s Order 14 of
1985) the provisions of Article 48 and Article 58 were radically modified in
comparison to the earlier provision contained in the 1973 Constitution ... ....
.... .......
However,
the National Assembly, before which the Revival of the Constitution Order, 1985
(President’s Order 14 of 1985) Was placed for adoption. did not agree to accept
the provisions of clause (2) of Article 48 without qualifications particularly
in so far as the power of the President to dissolve the National Assembly was
concerned. Thus, the Constitution (Eighth Amendment) Act, 1985 as it was
finally adopted by the National Assembly curtailed the absolute discretion of
the President in the matter of dissolution of the National Assembly. The
provisions of clause (2) of Article 48 provided that:‑‑
“Notwithstanding
anything contained in clause (1) the President shall act in his discretion in
respect of any matter in respect of which he is empowered by the Constitution
to do so and the validity of anything done by the President in his discretion
shall not be called in question on any ground whatsoever.”
The
amplitude of this provision was significantly cut down be the non obstante
clause contained in sub‑Article (2) of Article 58 by introducing the
words “Notwithstanding anything contained in clause (2) of Article 48” in the
beginning of clause, before the words “the President may also dissolve the
National Assembly in his discretion where in his opinion‑‑
(a) ........
(b) a situation has arisen in which the
Government cannot be carried on in accordance with the provisions of the
Constitution and an appeal to electorate is necessary.”
This
Court, in Haji Muhammad Saifullah’s case (PLD 1989 SC 166) after a close
analysis of this provision, in the light of the relevant background, held that
if it could be shown that no grounds existed on the basis of which an honest
opinion could be formed “that a situation had arisen in which the Government of
the Federation cannot be carried in
accordance with the provisions of the Constitution and an appeal to the
electorate is necessary’ the exercise of the power would be unconstitutional
and open to correction through judicial review. As the examination of the
grounds of the order d dissolution passed by the President on 29th May, 1988
revealed that the pre‑requisites prescribed for the exercise of the
powers conferred by Article 58(2)(b) did not exist, the said action was found
to be unlawful.
However,
despite the above finding, the consequential relief of restoration of the
National Assembly was not granted. It was observed that “the writ jurisdiction
is discretionary in nature and even if the Court finds that a party has a good case, it may refrain from giving him
the relief if greater harm is likely to be caused thereby than the one sought
to be remedied. It is well settled that individual interest must be
subordinated to the collective good. Therefore, we refrain from granting
consequential reliefs, inter alia, the restoration of the National Assembly and
the dissolved Federal Cabinet”.
Other
important reasons for not restoring the National Assembly were that the country
was geared for fresh elections and that the dissolved National Assembly was
elected on the basis of partyless, elections, which elections had been
boycotted by some of the political parties, rendering its representative
character doubtful for some extent. Faced with the choice whether to restore
such an Assembly or not, in exercise of its discretionary writ jurisdiction,
the Court exercised its discretion. in favour of not doing so.
Undoubtedly,
two opinions can legitimately be entertained as to the correctness of the
course which was followed here. On hindsight, I now think that after having found the action of
dissolution of the National Assembly was not sustainable in law, the Court should
not have denied the consequential relief and ought to have restored the
National Assembly.
Be
that as it may, it need to be clarified that in the case of Kh. Ahmad Tariq
Rahim (PLD 1992 SC 646) the Court had no such choice. In that case, the
majority had found the order of dissolution passed by the President under
Article 58(2)(b) on 6th August, 1990 to be valid and upheld it. The dissolution
of the National Assembly was found to be lawful and proper. Hence the said
instance is of no relevance here.
Coming
back to the question of the role assigned to the President and the powers
vested in him after the adoption of the Constitution (Eighth Amendment) Act,
1985, reference to the power to dissolve the National Assembly conferred on him
by clause (2) of Article 58, which power was not earlier vested in him, has
already been made. In addition he was empowered also to appoint, in his
discretion, the Chief Election Commissioner V (Article 213), the Chairman of
the Public Service Commission [Article 242 (1‑A)l and the Chairman Joint
Chiefs of Staff Committee [Article 243(2)(c)]. He was also empowered to appoint
the Governors of the Province after consulting the Prime Minister [Article
1011. Powers were also conferred on him to, refer any matter of national
importance to a referendum [Article 48(6)). Duty was cast on the Prime Minister
vide the substituted Article 46 to keep the
President fully cognisant of the doings of his Government in the
following
words:
46. It shall be the duty of the Prime
Minister‑‑‑
(a) to communicate to the President all
decisions of the Cabinet relating
to the administration of the
affairs the Federation and proposals for
legislation;
(b) to furnish such information relating
to the administration of the affairs of the Federation and proposals for
legislation as the President may call for; and
(c) if the President so requires, to
submit for the consideration of the Cabinet any matter on which a decision has
been taken by the Prime Minister or a Minister but which has not been
considered by the Cabinet.
In
view of these newly‑added provisions, it was argued that a preeminent
role had been assigned to the President. He was not now merely the
Constitutional Head of the State simply enjoying a high ceremonial office but
had, in fact, become a full partner in the governance of the country and indeed
the more important partner. In view of this pre‑eminent position as the
Head of the State and in consonance with the spirit of the modified
Constitution (after the amendments made therein during the Martial Law period
and sanctified by the 8th Constitutional Amendment adopted in 1985) the Prime
Minister was expected to accept the guidance of the President and to act in
accordance with his advice and to mould his conduct accordingly. This
perception of the President becomes manifest from the terms of the impugned
order of dissolution itself. Herein reliance is placed not only on the specific
powers conferred on him by clause (2)(b) of Article 58 but also on “all other
powers enabling him” in that behalf. This is indicative of his belief that
besides the powers specifically conferred upon him by the terms of the
Constitution, some residual or implied powers also inhere in him.
Unfortunately,
this belief that he enjoys some inherent or implied powers besides these
specifically conferred on him under Articles 46, 48(6), 101, 242 (1A) and
243(2)(c) is a mistaken one. In a Constitution contained in a written document
wherein the powers and duties of the various agencies established by it are
formulated with precision, it is the wording of the Constitution itself that is
enforced and applied and this wording can never be overriden or supplemented by
extraneous principles or non‑specified enabling powers not explicitly
incorporated in the Constitution itself. In view of the express provisions of
our written Constitution detailing with fullness, the powers and duties of the
various agencies of the Government that it holds in balance there is no room of
an y residual or enabling powers inhering in any authority established by it
besides those conferred upon it by specific words.
Our Constitution, in fact, is
designed to create a parliamentary democracy. The President in this set‑up
is bound to act, in the exercise of his functions, in accordance with the
advice of the Cabinet or the Prime Minister [Article 48(l)] and the Cabinet in
its turn is collectively responsible to the National Assembly [Article 91(4)]
though the Prime Minister holds office at the pleasure of the President.
However, the President cannot remove him from his office as long as he commands
the confidence of the majority of the members of the National Assembly [Article 91(5)1. In view of these
provisions, the system of Government envisaged by the Constitution of 1973 is
of the Parliamentary type wherein the Prime Minister as Head of the Cabinet is
responsible to the Parliament, which consists of the representatives of the
nation.
It
is manifest, therefore, that in the scheme of our Constitution the Prime
Minister in administering the affairs of the Government is neither answerable
to the President nor in any way subordinate to him. In formulation of the
policies of his Government and in the running of its affairs, the Prime W
Minister is answerable only to the National Assembly and not to the President.
Indeed, it is the President who is bound by the advice of the Prime Minister or
the Cabinet in all matters concerning formulation of policies and
administration of the affairs of the Government and not the other way about, as
appears to have been mistakenly understood. Undoubtedly, the President may
require the Cabinet or the Prime Minister, as the case may be, to reconsider
any advice tendered to him but the President is bound to act on the advice
tendered, even if it be the same, after consideration. Undoubtedly, both are
expected to work in harmony and in close collaboration for the efficient
running of the affairs of the State but as their roles in the Constitution are
defined, which do not overlap, both can exercise their respective functions
unhindered and without bringing the machinery of the Government to a
standstill. Despite personal likes or dislikes, the two can co‑exist
Constitutionally. Their personal likes or dislikes are irrelevant so far as the
discharge of their Constitutional obligations are concerned. Despite personal
rancour, ill‑will and incompatibility of temperament, no deadlock, no
stalemate, no breakdown can arise if both act in accordance with the terms or
the Oath taken ‑by them, while accepting their high office. They have
sworn:
.not
to allow their personal interest to influence their official conduct or their
official decisions.”
And
taken Oath:
“to
do right in all circumstances, to all manner of people, according to law,
without fear or favour, affection or ill‑will.”
Coming
now to the speech of the Prime Minister made on 17th of April, 1993, which
brought about his fall and led to the dissolution of the National Assembly, my
learned brother has set out its terms in sufficient detail. Suffice it to say,
that in his speech the Prime Minister accused disreputable and opportunistic
self‑seekers of using the Presidency for destabilising his Government. He
also alleged that dirty horse‑trading was taking place and conspiracies
were being hatched for ousting the elected Prime Minister. He also said that
the place which should have been a source for strengthening the democracy
appeared now to be yearning for establishing “one man’s” rule. He, however,
vowed that he would steadfastly oppose these machinations and not betray the
people and defiantly declared “I shall not resign, I shall not dissolve the
Assembly, I shall not take dictation”.
According
to the learned Attorney‑General the said speech and conduct of the Prime
Minister amounted, inter alia, to “subversion of the Constitution” and, therefore,
was by itself a sufficient ground for dissolving the National Assembly under
Article 58(2)(b).
The
words “situation has arisen in which the Government of the Federation cannot be
carried on in accordance with the provisions of the Constitution, in which
situation alone the President is empowered to dissolve the National Assembly
also came up for interpretation by this Court in the case of Haji Muhammad
Saifullah (PLD 1989 SC 166) and these words were explained by me to mean:‑‑
“Thus,
the intention of the law‑makers, as evidenced from their speeches and the
terms in which the law was enacted, shows that any order of dissolution by the
President can be passed and an appeal to the electorate made only when the
machinery of the Government has broken down completely, its authority eroded
and the Government cannot be carried on in accordance with the provisions of
the Constitution.”
And
were explained by Shafiur Rahman, J. as follows:
“The
expression ‘cannot be carried on’ sandwiched as it is between i ‘Federal
Government’ and ‘in accordance with the provisions of the Constitution’,
acquires a very potent, a very positive and very content. Nothing has been left
to surmises, likes or dislikes, opinion or view. It does not concern itself
with the pace of progress, the shade of the quality or the degree of the
performance or the quantum of the achievement. It concerns itself with the
breakdown of the Constitutional machanism, a stalemate, a deadlock in ensuring
the observance of the provisions of the Constitution.”
In
the present case, the breakdown of the machinery of the Government is said to
have occurred because of the Prime Minister’s speech as it made it impossible
thereafter for these two pillars of the State to co‑exist.
Now,
the President as the symbol of the unity of the Federation is z entitled to the
highest respect and esteem by all the functionaries of the State. But it is
equally true that this respect and esteem will be forthcoming if he conducts
himself with utmost impartiality and neutrality, that he keep himself entirely
aloof from party politics and does not give the impression to any one that he
is siding with one faction or working against the other. If, on the other hand,
‑ he gets drawn into the arena of party politics, he will become, in the
words used by Prime Minister Asquith in his memorandum to 1Gng George V, “the
football of contending factions”.
The
material placed before us shows, unfortunately, that the opinion formed by the
Prime Minister that the President had ceased to be a neutral figure and started
to align himself with his opponents and was encouraging them in their efforts
to destabilise his Government, was an opinion that could indeed be reasonably
entertained. In these circumstances, the charge against the Prime Minister of
subverting the Constitution by his speech of April 17, 1993 when he was only
protesting at this situation is reminiscent of the saying (in Urdu):
(when the mighty strikes you are not permitted
to protest).
The
people of Pakistan have willed to establish an order wherein the State shall
exercise its powers and authority through the chosen representatives of the
people; wherein the principles of democracy, freedom, equality, tolerance
and social justice, as enunciated by Islam, shall be fully observed (Article
2A).
No
one man howhighsoever can, therefore, destroy an organ consisting of, chosen
representatives of the people unless cogent, proper and sufficient cause exists
for taking such a grave action. Article 58(2)(b), no doubt, empowers the
President to take this action but only where it is shown that ‘a situation has
arisen in which the Government. of the Federation cannot be carried on in
accordance was the provisions of the Constitution”.
Enough
has been said above to indicate that no such situation had arisen here and that
if any such situation could be said to have arisen it was not of the making of
the Prime Minister.
In
these circumstances, the dismissal of the Prime Minister alongwith his Cabinet
and the dissolution of the National Assembly under the purported exercise of
powers conferred on the President under Article 58(2)(b) cannot be B upheld.
The action taken did not fall within the ambit of this provision. This unlawful
action moreover was also violative of Fundamental Right 17. As this B Court is
duty bound to enforce Fundamental Rights and will not hesitate to enforce them
whenever it is established that they have been violated, the necessity for
taking action under Article 184(3) of the Constitution arose in this case. Accordingly,
on the. 26th May, 1993, on the conclusion of the arguments of the parties, the
Court in furtherance, of its duty
decided to take action and pass the following Order:
ORDER
“We
hold by majority (of 10 to 1) that the petition is maintainable under Article
184(3) of the Constitution.
On
merits, by majority (of 10 to 1) we hold that the order of the 18th April,
1993, passed by the President of Pakistan is not within the ambit of the powers
conferred on the President under Article 58(2)(b) of the Constitution and other
enabling powers available to him in that behalf and has, therefore, been passed
without lawful authority and is of no legal effect.
As
a consequence of our order, the National Assembly, Prime Minister and the
Cabinet shall stand restored and entitled to function as immediately before the
impugned order was passed.
All
steps taken pursuant to the order, dated 18th April, 1993 passed under Article
58(2)(b) of the Constitution such as‑the appointment of the Care‑taker
Cabinet etc. will, therefore, be of no legal’ effect. However, all orders
passed, acts done and measures taken in the meanwhile by the Care‑taker
Government, which have been done, taken and given effect to in accordance with
the terms of the Constitution and were required to be done or taken for the
ordinary orderly running of the. State shall all be deemed to have been validly
and legally done.”
The
above are the ‘reasons for the short order we passed that day.
In
the end our grateful thanks are due to all the learned counsel for the great
ability, knowledge and industry with which they assisted the Court in the
resolution of the highly difficult and sensitive questions which were involved
in this matter. We are all deeply obligated to them.
ABDUL
QADEER CHAUDHRY, J.‑‑‑l agree,
FAZAL
ELAHI KHAN, J.‑‑‑l agree.
SHAFIUR RAHMAN, J.‑‑‑Mr.
Muhammad Nawaz Sharif, the ousted Prime Minister of the Islamic Republic of
Pakistan, has presented before us a petition under Article 184(3) of the
Constitution. He seeks thereunder the enforcement of Fundamental Right 17 which
guarantees to him, like every other citizen of Pakistan, not being in the
service of Pakistan, a right to form or
be
a member of a political party, subject to any reasonable restrictions imposed
by law in the interest of the sovereignty or integrity of Pakistan. He feels
that the President by invoking his . powers under Article 5,S(2)(1)) of the
Constitution and dismissing him from the office of Prime Minister, and its
Cabinet and by dissolving the National Assembly of which he was the majority
party leader has violated this guaranteed Fundamental Right. There are two
other such petitions coming up for hearing alongwith it.
The
Federation of Pakistan, the President of Pakistan and the Care taker Prime Minister
have raised a preliminary objection to the very commence of such a petition in
this Court under Article 184(3) of the Const.1tw6on. Mr. Aziz A. Munshi, the
learned Attorney‑General for Pakistan has, in support of his preliminary
objections with regard to the maintainability of the Constitution petition
under Article 184(3) of the Constitution in the Supreme Court of Pakistan,
stated that on the express words of the Fundamental Right 1.7 that right
extends to‑‑‑
(i)
right to form a political party;
(ii)
right to become a member of political party.
This
right within the Constitutional framework does not extend to anything beyond
these two. The rights claimed in these Constitution petitions are neither with
reference to these rights nor do they directly arise out of it. None of these
two questions is to be debated in this Court in these petitions.
According
to him the crux of the petition is the right of the petitioner to continue in
power, his right town Government politically, his‑right to a tenure to do
so etc. All these matters are governed by different provisions of the
Constitution having no connection whatsoever with Fundamental Right 17. For
example, Article 51 of the Constitution provides for election by direct and
free vote to ‘ the National Assembly. The formation of the Government is
provided in Article 91 of the Constitution. TW tenure of the National Assembly
has been limited by Article 52 of the Constitution. The tenure of the Federal
Government has been limited by three specified eventualities‑‑
under clause (1) of Article 58, under clauses (a) and (b) of clause (2) of
Article 58.
In
View of these provisions of the Constitution and the invocation of such a power
reserved for the President no question. of Fundamental Right arises at all.
According to the learned Attorney‑General the formation of the party and
of being a member of the Political Party, and nothing beyond this can be
claimed tinder Fundamental Right 17.
Mr.
S.M. Zafar, 5enior Advocate, in support of the preliminary objections admitted
that the question raised in these petitions is undoubtedly of public
importance. However, according to him, neither directly nor indirectly do these
involve enforcement of any of the Fundamental Rights. According to him, the
Fundamental Right guaranteed under Article 17 extends to all the political
processes culminating in the election of a member to the National Assembly.
Once he is so elected the political rights as defined and guaranteed in
Fundamental Right 17 come to an end and an altogether different right referable
to the other provisions of the Constitution comes into being. If it is only a
right of functioning as a member after being elected as a member of the National Assembly, then
necessarily the petitioner has to invoke Article 199 of the Constitution as no
Fundamental Right as such is available for enforcement of tenure as a member of
the National Assembly or as, a member of political party having been elected to
it.
According
‘ to Mr. S.M. War, political parties have a bundle of rights, some are
Fundamental Rights, some are Constitutional and legal rights and some are
conventional. It is only Fundamental Rights that are enforceable by recourse to
Article 184(3) of the Constitution and not the other rights howsoever strong
their case may be and howsoever desirable it may appear to the onlooker.
Political parties can be utilised under the Fundamental Right only for reaching
the elected bodies and once they reach the elected body there is no fundamental
right to continue for the normal tenure. They have no vested right in the
tenure as such in spite of a life period having been provided for these elected
bodies.
The
Fundamental Rights guaranteed in any Constitution, an organic instrument, are
not capable of precise or permanent definition. They cannot be charted on a
piece of paper delineating their boundaries for all times to come. The
treatment of this preliminary objection would be more comprehensive,
conceptually more readily intelligible and complete once the substance of the impugned
Constitutional order has been examined in the context of our political freedoms
and Parliamentary system of Government, as brought out in a written
Constitution of our own.
The
President of Pakistan by an order dated 18‑4‑1993, in exercise of
powers under clause 2(b) of Article 58 of the Constitution of the Islamic
Republic of Pakistan, 1973 and all other powers enabling him, dissolved the
National Assembly with immediate effect and dismissed the Prime Minister and
the Cabinet who ceased to hold office forthwith. The text of the order is
reproduced hereunder:‑‑
‘THE
PRESIDENT
DISSOLUT1ON
ORDER
The
President having considered the situation in the country, the events that have
taken place and the circumstances, the contents and consequences of the Prime
Minister’s speech on 17th April, 1993 and among others for the reasons
mentioned below is of the opinion that the Government of the Federation cannot
be carried on in accordance with the provisions of the Constitution and an
appeal to the electorate is necessary:‑‑
(a) The mass resignation of the members
of the Opposition and of considerable numbers from ‘ the Treasury Benches,
including several Ministers, inter alia, showing their desire to seek fresh
mandate from the people have resulted in the Government of the federation and
the
National
Assembly losing the confidence of the people, and that the dissension therein,
has nullified its mandate.
(b) The Prime Minister held meetings with
the President in March and April and the last on 14th April, 1993 when the
President urged him to take positive steps to resolve the grave internal and international problems
confronting the country and the nation was anxiously looking forward to the
announcement of concrete measures by the Government to improve the situation.
Instead, the Prime Minister in his speech on 17th April, 1993 chose to divert
the people’s attention by making false and malicious allegations against the
President of Pakistan who is Head of State and represents the unity ‘of the
Republic. The tenor of the speech was that the Government could not be carried
on in accordance with the provisions of the Constitution and he advanced his
own reasons and theory for the same which reasons and theory, in fact, are
unwarranted and misleading. The Prime Minister tried to cover up the failures
and defaults of the Government ‘although he was repeatedly apprised of the real
reasons in this behalf, which he even accepted and agreed to rectify by
specific measures on urgent basis. Further, the Prime ‑ Minister’s speech
is tantamount to a call for agitation and in any case the speech and his
conduct amounts to subversion of the Constitution.
(c) Under the Constitution the Federation
and the Provinces are required to exercise their executive and legislative authority
as demarcated and defined and there are specific provisions and institutions to
ensure its working in the interests of
the integrity, sovereignty, solidarity and well‑being of the Federation
and to protect the autonomy granted to the Provinces by creating specific
Constitutional institutions consisting of Federal and Provincial
representatives, but the Government of the Federation has failed to uphold and
protect these, as required, in that, inter alia:
(i) The Council of Common Interests
under Article 153 which is responsible only to Parliament has not discharged
its Constitutional functions to exercise its powers as required by Articles 153
and 154, and in relation to Article 161, and particularly in the context of
privatisation of industries in relation to item 3 of Part II of the Federal
Legislative List and item 34 of the Concurrent Legislative List.
The
National Economic Council under Article 156, and its Executive Committee, has
been largely bypassed, inter,‑ alia, in the formulation of plans in
respect of financial, commercial, social and economic policies.
Constitutional
Powers, rights and functions of the Provinces have been usurped, frustrated and
interfered with in violation of inter alia Article 97.
(d) Mala
administration, corruption and nepotism have reached such proportions in the
Federal Government, its various bodies, authorities and other corporations
including banks supervised and controlled by the Federal Government, the lack
of transparency in the process Of privatisation and in the disposal of
public/Government properties, that they violate the requirements of the Oath(s)
of the public representative together with the Prime Minister ,the Ministers
and Ministers of State prescribed in the Constitution and prevent the Government
fr6m functioning in accordance with the provisions of the Constitution.
(e)
The functionaries, authorities and agencies of the Government under the
direction, control, collaboration and patronage of the Prime Minister and
Ministers have unleashed a reign of terror against the opponents of the
Government including political and personal rivals/relatives, and mediamen,
thus creating a situation wherein the Government cannot be carried on in
accordance with the provisions of the Constitution and the law. ‑
(f) In violation of the provisions of
the Constitution:‑‑‑
(i) The Cabinet has not been taken into
confidence or decided upon numerous
Ordinances and matters of policy.
(ii) Federal Ministers have for a period
even been called upon not to see the President.
(iii) Resources and agencies of the
Government of the Federation, including statutory corporations, authorities and
banks, have been misused for political ends and purposes and for personal gain.
(iv) There has been massive wastage and
dissipation of public funds and assets at the cost of the national exchequer
without legal or valid justification resulting in increased deficit financing
and indebtedness, both domestic and international, and adversely affecting the
national interest including defence.
(v) Articles 240 and 242 have been
disregarded in respect of the Civil Services
of Pakistan.
The
serious allegations made by Begum Nuzhat Asif Nawaz as to the high‑handed
treatment meted out to her husband, the late Army Chief of Staff, and the
further allegations as to the circumstances culminating in his death indicate
that the highest functionaries of the Federal Government have been subverting
the authority of the Armed Forces and the machinery of the Government and the
Constitution itself.
(h) The Government of the Federation for
the above reasons, inter alia, is not in a position to meet properly and
positively the threat to the security and integrity of Pakistan and‑‘the
grave economic situation confronting the country, necessitating the requirement
of a fresh mandate from the people of Pakistan.
2. Now, therefore, 1,
Ghulam Ishaq Khan, President of the Islamic Republic of. Pakistan in exercise
of the powers conferred on me by clause (2)(b) of Article 58 of the
Constitution of the Islamic Republic of Pakistan and all other powers enabling
me, hereby dissolve the National Assembly with immediate effect; and dismiss
the Prime Minister and the Cabinet who shall cease to hold office forthwith.
ISLAMABAD,
18th April, 1993.
(Sd.)
GHULAM ISHAQ KHAN,
PRESIDENT.”
This
order of the President of Pakistan led to the filing of a number of
Constitution Petitions. in various Courts of the Country and these are arranged
chronologically as hereunder:‑‑
|
Date
of Institution |
Court |
Const.
Petition No. and Parties name |
Law
under which filed |
|
1.19/20‑4‑1993 |
Lahore
High Court, Rawalpindi Bench |
W.P.
No. 386/93 Mr. Gohar Ayyub
Khan, Speaker v. Federation of Pakistan etc. |
Art.
199 |
|
2.
20‑4‑1993 |
Lahore
High Court, Lahore. |
W.P.
No. 4066/93 Iftikhar Hussain v. Federation. Of Pakistan. |
Art.
199 |
|
3.
21‑4‑1993 |
Lahore
High Court, Lahore. |
W.P.
No. 4071/93 Mr.. Art. 199 M.D. Tahir, Advocate v. federation of Pakistan. |
Art.
199 |
|
4.
24‑4‑1993 |
High
Court of Balochistan, Quetta. |
Const.
P 203/93 Aurangzeb Mir Advocate, v. Federation of Pakistan. |
Art.
199 |
|
5.
25‑4‑1993 |
Supreme
Court of Pakistan, Rawalpindi. |
Const.
P. 8/93 Mian Muhammad Nawaz Sharif v. President of Pakistan, etc. ‑ |
Art.
184(3) |
|
6.
26‑4‑1993 |
Supreme
Court of Pakistan, Rawalpindi. |
Const.
P. 9/93 Ch. Shujaat Hussain and others v. Federation of Pakistan and others. |
Art.
184(3) |
|
7.
26‑4‑1993 |
Lahore
High Court, Lahore. |
W.P.
4325/93 Mr. Muhammad Ajmal Khan Khattak v. Federation of Pakistan. |
Art.
199 |
|
8.
26‑4‑1993 |
Lahore
High Court, Lahore. |
W.P.
4326/93 Ch. Zafarullah v. Federation of
Pakistan.. |
Art.
199 |
|
9.
27‑4‑1993 |
Lahore
High Court, Lahore. |
W.P.
4327/93 Muhammad Akbar Cheema,
Advocate v. President of Pakistan etc. |
Art.
199 |
|
10.
27‑4‑1993 |
Lahore
High Court, Lahore. |
W.P.
4328/93 Mian Abdul Waheed v. Pakistan |
Art.
199 |
|
11.
2-5-1993 |
Lahore
High Court, Lahore. |
W.P.
4705/93 Tahir Hameed and
4 others v. Federation of Pakistan etc. |
Art.
199 |
|
12.
5-5-1993 |
Supreme
Court of Pakistan, Rawalpindi. |
Const.
P. 10/93 Malik Raees Ahmed v. Ghulam
Ishaq Khan and others. |
Art.
184(3) |
|
13.
5-5-1993 |
Supreme
Court of Pakistan, Lahore. |
Const.
P. 12/03 M. Ajmal Khattak v.
President of Pakistan etc. |
Art.
184(3) |
|
14.
5-5-1993 |
Supreme
Court of Pakistan, Lahore. |
Const.
P. 13/93 Ch. Nazir Ahmed v. Federation
of Pakistan. |
Art.
184(3) |
|
15.
6-5-1993 |
Lahore
High Court, Lahore. |
W.P.
4706/93 Mian Muhammad
Akrarn v. Federation of Pakistan. |
Art.
199 |
|
16.
9-5-1993 |
Lahore
High Court, Lahore. |
W.P.
4707/93 M.P. Khan, Chairman, Pakistan Labour Party v. Federation of Pakistan
etc. |
Art.
199 |
|
17.
9-5-1993 |
Supreme
Court of Pakistan, Rawalpindi. |
Const.
P.11/1993 SA. Hameed, MPA v. The Federation of Pakistan and others. |
Art.
184(3) |
|
18.
10-5-1993 |
Supreme
Court of Pakistan, Rawalpindi. |
Const.
P. 14/93 Iftikhar Art. Hussain v. Federation of Pakistan etc. |
Art.
184(3) |
Mr.
Khalid Anwar, Advocate, the learned counsel for the petitioner (in Constitution
Petition No. 8/93) taking up the merits of the dissolution order observed that
it has a totally extraneous hurtful content which cannot but be said to be a
Freudian slip, a revelation of the mental state, reminiscent of the royal
prerogative not recognised by any provision of our Constitution, not contained
in any of the two previous dissolution orders. It is, according to him,
that
while concluding the order of dissolution, the President of Pakistan has
ordered and dismissed the Prime Minister and the Cabinet. ‘Dismissal’ is a word
well‑understood in Pakistan and not used in our Constitution for the
Prime Minister or the Cabinet. The expression used therein and the other
Articles of the Constitution is ‘cease to hold office’ both for the Prime
Minister,
the Cabinet and the President (Article 47(8)). Even the order passed by the
late General Ziaul Haq had shown consideration and restraint in language while
passing the dissolution order. The stigma, the infamy and the rejection
attributable to the expression ‘dismissal’ is all there for no obvious cause or
reason, supportable neither from Constitution, nor law or propriety.
By referring to two sub‑clauses
of clause (2) of Article 58 of the Constitution the learned counsel for the
petitioner attempted to argue that a situation provided for and taken care of
under sub‑clause (a) of Article 58(2) of the Constitution could not on
account of its express mention and separate treatment be taken also to be part
of and included in clause (b). For example,
if the President felt that the Prime Minister was on account of
defections or resignations not in a position to command the majority of the
House then he should have allowed the formal process of getting a ‘no‑confidence
motion’ passed in the National Assembly and as required ensured that no other
member of the National Assembly was likely to command the confidence of the
majority of the members which had to be ascertained again on the express language
of the sub‑clause in a session of the National Assembly. Sub clause (b),
according to the learned counsel, deals with an altogether different situation‑and
the expression “cannot” used therein implies not a political, not a transitory
failure to observe the Constitutional provision but a permanent inability and a
structural breakdown or the obstruction should be such as to
make
an appeal to the electorate necessary for solving it. According to the learned
counsel, the antecedent events clearly give the
impression that events after ‘the 22nd of December, 1992 and none of an earlier date were the basis of the
dissolution order. President in his speech to
the joint session of Houses of Parliament had
answered every possible ‑objection against the Government of the ousted
Prime Minister and defended and endorsed his policies.
What
happened after that will be clear from the Press Release dated 14‑4‑1993
which reads as hereunder:‑‑
“Press
Release
The
Prime Minister called on the President today and they reviewed the grave and
pressing national and international problems facing the country. The meeting
lasted for about two hours.
The
President urged the Prime Minister to undertake positive steps as early as possible
to address effectively these problems to the satisfaction of the public
representatives and the people. The Prime Minister undertook to do so on an
urgent basis and to revert to the President with precise measures in this
behalf.”
This
Press Release was prepared and released by the Aiwan‑e‑Sadar.
According to it the Prime Minister was required to satisfy the public
representatives and the people. The people could be satisfied on electronic
media and the representatives by calling a meeting of the National Assembly.
Both these devices were adopted in the sense that the Prime Minister appeared
on the electronic media to make a speech to explain and satisfy the people on
17‑4‑1993. On 18‑4‑1993 the Speaker of the National
Assembly requisitioned a session of the National Assembly on the next day and
this was notified as required under the Rules of Procedure and Conduct of
Business in the National Assembly, 1992 by hourly broadcasts in the news from 5‑00
p.m. onwards as required by Rule 3(2) of National Assembly Rules of Procedure
and Conduct of Business. Therefore, what the President desired was thwarted by
the President himself and made a ground for taking the action against the
ousted Prime Minister.
The
learned counsel then referred to Article 91(4) of the Constitution to
demonstrate that the Cabinet together with the Ministers of State were to be
collectively responsible to the National Assembly. Again clause (5) of Article
91 of the Constitution provides that the Prime Minister shall hold office during
the pleasure of the President but the President shall not exercise his powers
under this clause unless he satisfies himself that the Prime Minister does not
command the confidence of the majority of the members of the National Assembly
in which case he shall summon the National Assembly and require the Prime
Minister to obtain the vote of confidence from the Assembly. Clause (1) of
Article 92 empowered the President to appoint Federal Ministers and Ministers
of State only on the advice of the Prime Minister. Article 48 of the
Constitution empowers the President to refer back the executive acts of the
Government for reconsideration if he is not satisfied with the correctness of
the decision taken, order passed or proposal made. Article 75 of the Constitution
provides a procedure for the President
for expressing dissatisfaction with the legislative measures. The
legislation on privatisation had gone to the President and was cleared by him
without expressing dissatisfaction. That enterprise has been made a ground for
dissolving the National Assembly. Similarly, Article 46 empowers the President
to send to the Cabinet for reconsideration any proposal which required fresh
Cabinet attention. None of these steps having been ever taken, the policies,
performance and the pace of progress etc. could not be made a ground for
dissolution.
Article
58(2)(b) of the Constitution empowers the executive head to destroy the
legislature and to remove the chosen representatives. It is an exceptional
power provided for an exceptional situation and must receive as it has in
Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others
PLD 1989 SC 166 the narrowest interpretation.
‘The
learned counsel for the petitioner distinguished a series of decisions rendered
by the Indian Supreme Court by reference to Article 356 of the Indian
Constitution. He pointed out how the scheme of that Constitution was different
and how finally the Indian Supreme Court came round to restore a dissolved
Assembly dealt with by the High Court in S.R. Bommai and others v. Union of
India and others (AIR 1990 Karnataka 5).
Taking
up the grounds of dissolution one by one, the learned counsel pointed out the
rule 25 of the Rules of Procedure and Conduct of Business in the National
Assembly, 1992 and Article 64 of the Constitution dealing with the resignations
of the members of the National Assembly. The decisions of this Court on the
subject of ‘resignation by the elected representatives’ in Mr. A.K. Fazalul
Quader Chaudhury v. Syed Shah Nawaz and 2 others (PLD 1966 SC 105) and Mirza
Tahir Beg v. Syed Kausar Ali Shah and others (PLD 1976 SC 478) were referred
to. In view of these Constitutional provisions the President could not have
received these resignations at all muchless have acted on them for any purpose
before they reached the Speaker. It was a wholly misconceived ground. The act
of the President of receiving, entertaining and acting on such resignations of
dissatisfied Members of the National Assembly shifted the venue constitutionally
provided for showing no confidence, in the Government from the National
Assembly to the Presidency and as is evident from a fortnight’s antecedent
press reports continuously appearing uncontradicted by the Presidency a lot of
political confusion and destabilisation of the established Government went with
it. He has extensively referred to the performance of Council of Common
interests and National Economic Council to show that no such Constitutional
impediment came into existence which could not be readily and immediately
solved by resort to Constitutional remedies provided. As regards ‑the
grounds of maladministration and the political victimisation, these are not the
type of Constitutional problems as held in the case of Haji Muhammad Saifullah
Khan PLD 1989 SC 166 which could justify the dissolution or be made a ground
for dissolution. The proper course’ in all these matters was and always is to
go to the Constitutional and statutory bodies like the Parliament, the Courts
and the Press for redress rather than obtain and justify dissolution of the
established Government of the country. The allegations made in the Press which
remain undecided in Court of law in accordance with the prescribed procedure
could not have at all found mention but, it appears from the dissolution order
that the President had been entertaining all sorts of information appearing in
the press or otherwise received by him and unjustifiably those have been made
the basis for forming an opinion giving the harsh Constitutional treatment to
an established Government enjoying the support of the majority of the people.
Finally,
the Prime Minister has been held guilty of subversion which is in fact high
treason according to our law. Such an indictment and verdict given in a
Constitutional document is a political career killer. Such a finding could F
only be recorded after a judicial pronouncement and not in an executive and
political instrument made out under Article 58(2)(b) of the Constitution.
The
learned counsel for the petitioner has taken us to the Press reports
continuously appearing in the press and remaining uncontradicted from any
official quarter which destabilised the established Government of the
petitioner and they were traceable directly or indirectly and made specific mention
of the Presidency.
Dr.
Farooq Hassan, Advocate, the learned counsel representing petitioner in
Constitution Petition No. 12 of 1993 contended that once a session of the
National Assembly was convened under Article 54(3) of the Constitution as was
done in this case, the power of the President under Article 58(2)(b) of the
Constitution became dormant and only the Speaker could prorogue the session. He
pointed to a diagnostic test for invocation of Article 58(2)(b) of the
Constitution, that is prior exhausting of all the Constitutional options open
to the President so as to demonstrate that it was still necessary to approach
the electorate for giving a fresh mandate. Where the breakdown of the
Constitutional machinery had not taken place nor ‘an appeal to the electorate
was necessary, the exercise of power under Article 58(2)(b) of the Constitution
was unconstitutional.
The
learned counsel further contended that in such an exercise of Constitutional
power it was not for the petitioner to prove positive malice in the exercise of
it. On the contrary, it is for the repository of power to satisfy the Court
that it was an honest and fair exercise of the power and it was a
Constitutional requirement. According to him the Fundamental Right contained in
Article 17 is dynamic, evolving, growing concept and the Courts have a duty to
give the fullest ‑effect to it and read the other provisions of the
Constitution as protecting, advancing and strengthening that right rather than
curtailing, negating or stopping it at any particular stage. The Constitutional
provisions which allow a life of rive years to the National Assembly and
entitle the leader of the majority party to claim installation as Prime
Minister of the country as of right under the Constitution should be read as an
extended entrenchment of that Fundamental Right and not outside and beyond the
pale of such Fundamental Right.
All
conflicts between the Constitutional functionaries have to be resolved by
reference to the Constitutional provisions. He has by reference to the various
Articles of the Constitution pointed out that there is adequate provision in
our Constitution f6r’rccohsideration of a matter where the functionaries
differ. The reconsideration of the Prime Minister is provided for in Article
48(1), proviso, by the Cabinet in Article 40(c) and by the legislature in
Article 75 of the Constitution. Besides there is provision for advisory opinion
from the Court under Article 186. There is also provision, for a Referendum in
Article 48(6) at the discretion of either of these functionaries. This
mechanism of the Constitution ensures a smooth resolution of all the conflicts
and in the process education to the people, the ultimate sovereign in politics,
with a view to achieve the Constitutional goals.
The
learned Attorney‑General in ‘reply contended that the President should
have received at all hands a more dignified treatment and reference than was
done in the speech of the Prime Minister on 17‑4‑1993, in the
grounds taken up in the petition and in the arguments addressed and in the post
dissolution public meetings. According to him, the President represents the
unity of the State. He represents the State of Pakistan and every action under ‘Article
99 of the Constitution has to be taken in his name. An exceptional power was
exercised by the President ‘ in dissolving the National Assembly under Article
58(2)(b) of the Constitution. He had the necessary material and applied his
mind to the fullest. The nexus between the grounds and the action taken
existed. The adequacy or the sufficiency of the material is not justiciable in
Courts. The President had formed his opinion objectively and all the attending circumstances clearly
showed that the Government could not be carried on in accordance with the
Constitution and such an order was necessary. The impugned. action was in
accord with the oath of the President, his Constitutional obligation, and was a
necessary requirement of ‘the situation.
Before
considering the merits of the arguments addressed before us, it is necessary to
clear certain factual aspects of the case. For this, the version of the
petitioner as put forth in the petition and the reply of the respondent to it
has been placed hereunder in juxtaposition preferably in the words used by
each:‑‑
Petitioner’s
case:
(1)
1 “All the progress made ordinarily should have pleased the President. But this
did not happen. ‘Apparently this progress without direct participation of the
President in policy‑making and decision‑making, displeased the
President’. Notwithstanding the arrangement regarding the administration of the
affairs of the Federation as stated in Article 48(l) and the entitlement of the
President mentioned as per Art.46 of the Constitution, ‘the President started
interfering in ordinary and routine affairs’. This was calculated to undermine
the authority and credibility of the Federal Cabinet and to give the impression
that what actually matters in the national affairs is the will of the President
and not the people and their elected Government.”
Reply
of the respondent:
“Argument
regarding any conflict of views regarding Article 48(l) and Article 40 of the
Constitution between the petitioner and the President is denied. In view of the
provisions of Article 48(4), the subject of advice cannot be inquired into by
the Honorable Court. It is denied that the President interfered in any matter
in violation of the Constitution as alleged. It is denied that there was any
intent on the part of the President to undermine the authority and credibility
of the Federal Government to give the impression that the will of the President
was to prevail.”
.
Petitioner’s case: ‘
(2) “In the circumstances an in depth
discussion took place within the Ruling Party about the advisability of
amending some Articles of the 8th Amendment of the Constitution. This fact it
appears, to have further displeased the President and he apparently drew the
conclusion that this was the first step covertly taken to remove him from office of the President. As such was not
the intention of the Ruling Party, it met to allay the fears of the President
and openly declared that it would back the President for a second term.”
Reply
of the respondent:
“The
President is not aware of any views or discussion within the party of the
petitioner about the 8th Amendment as alleged and therefore the averment about
the same having displeased the President is also incorrect. It is denied that
the President drew any conclusion about his own removal as alleged. The
declaration of the petitioner’s party backing the President for second term is
its own unilateral and voluntary act and the President never made any request
in this behalf, The petitioner has drawn his own unwarranted inferences about
the President on the question of 8th Amendment. On the other hand, the President made a public statement that the Constitution could be
amended in accordance with the
provisions of the constitution.”
Petitioner’.
Case:
(3) “But much to the surprise of the
Ruling Party this firm promise was construed as a total surrender and the
President who in total deplane of the terms and spirit of Article 41(l) and of
the oath of his office openly and vigorously started entertaining and
supporting persons hostile to the present Government, who were scheming and working
to destabilise the elected Government. That regular campaign based on baseless
stories was launched in a very organised manner. The bits and pieces of
disinformation to feed the propaganda campaign clearly pointed in the direction
of the Presidency.”
Reply
of the respondent:
‘.’It
is denied that the President entertained or supported persons hostile to the
Government who were allegedly scheming and working against the Government as ‘alleged.
The very existence of such persons is not within the knowledge of the President
and is emphatically denied.”
Petitioner’s
case:
(4) “All the newspapers
were full of speculations about the imminent fall of petitioner’s Government being engineered by the
President.”
Reply
of the respondent:
“The
allegations made in para. 6 are denied. The respondent is not responsible for
speculations in the newspapers since the press is free.”
Petitioner’s
case:
(5) “That the people and particularly
those who opposed the elected Government were entertained in large numbers.
Quite a few of them on coming out after their meetings with the President made
public statements that President would shortly announce dismissal of the
Federal Government headed by the petitioner. Such statements were never
contradicted by the President or by anybody on his behalf. In fact, many a
politician rejected by voters or discredited in public eye started a chorus
about imminent dismissal of the petitioner’s Government. The President had
started telling even members of Cabinet that they should join hands with him to
bring about fall of the petitioner and the current campaign Would cease.” ‑
Reply
of the respondent:
“The
President is not responsible for the statements made by other persons nor is it
the tradition of the President to issue contradictions from the Presidency. In
conformity with his Oath of Office, the President is fully entitled to and
grants interviews to all persons and public representatives and his action in
meeting the people is his normal function as Head of the State and the same has
been misconstrued by the petitioner‑who is under an illusion that the
President is not free to meet people. It is denied that the President asked any
member of the Cabinet to act against‑the petitioner.”
Petitioner’s
case,
(6)
“That on 14‑4‑1993 the petitioner met the President to once again
clear the atmosphere of distrust and allay the hostilities which could
jeopardize the democratic process in the country. Contrary to the discussion
and apparent consensus, the Presidency issued a Press Release which was
calculated to increase the tension and provide some justification for the final
step taken, i.e. dismissal of the elected Government and the National Assembly.”
The
petitioner’s perception of what transpired on 14‑4‑1993 is as
hereunder as per draft prepared but not issued which draft was extensively
utilised by the learned Attorney‑General for Pakistan:‑‑
“The
Prime Minister, Mr. Muhammad Nawaz Sharif today called on the President, Mr.
Ghulam Ishaq Khan at the Aiwan‑e‑Sadar. During the two‑hour
meeting, the President and the Prime Minister went into the causes of the
prevalent political situation in the country and it was agreed that necessary
measures would be taken to defuse it.
Referring
to speculations, discussions and debate on the 8th Amendment, the Prime
Minister informed the President that the issue was well behind us. He said the
recent statement of three Federal Ministers in this behalf fully reflected his
own views.
Discussing
the various policies and programmes of the Government, the Prime Minister said
he valued the President’s guidance and counsel and looked forward to his
continued advice at various stages of their formulation and implementation. It
was agreed to bring about improvements in the functioning of Me Government,
wherever necessary.
It
was also agreed that such meetings and consultations will be held more
frequently to ward off speculations and avoid misunderstanding,.
The
two agreed that efforts should be made. to win
back friends and colleagues who have IL , the Cabinet as a result of
misunderstanding and differences They hoped that most of them will be back
before long.
Federal
Ministers, Lt.‑Gen. (Retd.) Abdul Majeed Malik and Mr. Illahi Bakhsh
Soomro the President and the Prime
minister at a later stage of the meeting,”
Reply of the respondent
Adverse
allegations and insinuations made in para. 8 are denied and the same have been
commented upon hereinafter’
“The
Prime Minister called on the President today and they reviewed the grave and
pressing national and international problems facing the country. The meeting
lasted for about two hours.
The
President urged the Prime Minister to undertake positive steps as early as
possible to address effectively these problems to the satisfaction of the public
representatives and the people. The Prime Minister undertook to do so on an
urgent basis and to revert to the President with precise measures in this
behalf.”
Petitioner
case:
it
became necessary for the petitioner to take the nation into confidence about
the factors which had led to the tense political atmosphere which had brought
national activities to a standstill. The petitioner addressed the nation on 17‑4‑1993.”
Reply
of the respondent
Adverse
allegations and insinuations in para. 9 are denied. The ‑speech of the
petitioner dated 17‑4‑199.3 was unjustified and has been replied to
hereinafter.”
Petitioner
case:-
(8)
“on 18‑4‑1993 the members of the National Assembly requisitioned a
session of the National Assembly to, inter alia, consider the Press Release, of
the President of 14‑4‑1993, the speech of the Prime Minister and
the problems facing the Nation. The session was fixed by the Speaker for 19‑4‑IW3
at 5 p.m.
However
on 18-4-1993 to forestall such a move and consideration by the questions by the
National Assembly the President dismissed the National Assembly by the impugned
order dated 18‑4‑1993 riled as Annexure. It is submitted that the
said impugned order is mala ride, unlawful, arbitrary, mechanical, violative of
the rules of natural justice and the provisions of the Constitution.”
Reply
of the respondent.‑
“Adverse
allegations and insinuations in para. 10 are denied. The President Was totally
unaware of the requisitioning of the Session on 18‑4‑1993 and the
purpose for which the same was called. In any cast, the contents of this para.
have been replied to hereinafter.
Adverse
allegations and insinuations in para. 11 are denied. It is submitted that the
order dated 18‑4‑1993 was passed by the President after
consideration of the facts/documents/records/information before him and after
forming an objective opinion that the Government of the Federation could not
and cannot be carried on in accordance with the provisions of the Constitution.
The said order is wholly Constitutional.”
Petitioner’s
case‑
(9) “As the petition contains several
allegations of malice in fact, the President has been joined as a respondent
as, per rule laid down by the Supreme Court in PLD 19% SC I(Y)2 at p. 1150. No
notice under Article 248(4) is necessary because the malice complained of is in
the official capacity of the President.”
Reply
of the respondent
“Adverse
allegations made in para. 12 are denied. There is Constitutional bar on
impleading the President in the petition, in view of the provisions of Article
248 and any averment to the contrary is denied. No process can be issued to the
President by the ‑Hon’ble Court.”
The
speech o ‘ f the Prime Minister flashed on electronic media ‑Television
and Radio on 17‑4‑093 and that of the President on 18‑4‑1993,
were addressed to the Nation and were both in Urdu. In order to keep their
originality and thrust intact, the constitutionally important and relevant
portions of it, repeatedly quoted during the course of the argument arc being
reproduced‑ verbatim. No translation at this stage has been attempted.
The
portions of the speech of the Prime Minister dated 17‑4‑1993 which
received particular attention at the argument stage are listed hereunder:
Part
I of the Const. P. 8 of 1993
(1) Address of the President to the Joint
Session of Parliament on 22‑12‑1992
(pages 31 to 42);
(2) Address of the President to the Joint
Session of parliament on 19‑12‑1992
(pages 43 to 55);
(3) Performance of Government of the
petitioner (pages 78 to 82);,
Part
11 of the Const.‑L8 of 1993
(1) Paper clippings of Newspapers from
December, 1992 to the end of’
March, 1993 (pages I to 220).
Part
II of the Rejoinder to the Written Statement:
(1) Judgment dated 16‑11‑1992
and order dated 8/10‑3‑1993 passed in Civil Appeal No. 131‑K of 1987 and the documents submitted in the
Civil Appeal reflecting on the Privatisation of Industries (Annexure IA and Annexure I to
IV);
(2) Extract from the World Bank Report
(Annexure V);
(3) Comparative statement of References
and Sale Prices (Annexure VI);
(4) Reply to the President’s letter sent
to the Finance Division through Cabinet
Secretariat, dated 10‑2‑1992 (Annexure VII);
(5) Revised Prices Chart (Annexure VIII);
(6) Note on fixation of Reference Prices
(Annexure IX);
(7) Sample of 0ctober Bidding (Annexure
X);
(8) Sample of Open Bidding (Annexure XI);
(9) List of Buyers (Annexure XII);
(10)
List of Cement Plants sold alongwith Buyers’ names (Annexure XIII);
(11)
Analysis and evaluation of deficit Financing (pages 190 to 197);
(12)
Impact of Nawaz Sliaril’s Economic policies (pages 198 to 200);
(13)
Comments on the remarks of President of Pakistan speech about Foreign Direct
investment (pages 201 to 200);
(14)
Press Clippings from March, 1993 to May, 1993 on economic progress and
investment and on the basis of it foreign investment (pages 207 to 213);
15)
A note of evaluation of Privatizatiran process (pages 214 to 219);
(16) Press Clippings showing the active role
of the Presidency in obtaining resignations from the Ministers and the MPAs
thereby politically destabilising the Government (pages 220 to 265).
The
following material of antecedent date to the impugned action, made available by
the respondent, deserves mention:‑‑
Volume
If of file containing Annexure A to A‑12 (except A‑6 and A‑7)
and Annexure B to T
(1) The Resignations of
MNAs totaling 88 (pages 10 to 122);
(2) Press Release from
the Aiwan‑e‑Sadar dated 14‑4‑1993 with regard to them
meeting between the President and the Prime Minister (page 124);
The
Draft prepared by the Prime Minister’s Secretariat of the same meeting but not
issued (page 125);
(4)‑ Press Clippings of the advice and the
guidance afforded by the President to the Prime Minister in the matter of running
the Government properly (pages 126 to 132);
(5) President Secretariat’s
letter dated 28‑12‑1992 to the Cabinet Division desiring that the
Constitutional position as summarised in the Annexure to the letter may be
brought to the notice of the Government (pages 133 to 137). The Annexure
contained the following conclusion at page 137:‑‑
“The
setting up of the two Privatization Commissions and the whole process of
privatization, unilaterally initiated by the Federal Government, bypassing the
Council of Common Interests and the NEC,
appear to be ultra vires of the Constitution and, can be challenged in
superior Courts.”
(6) Letter of the
President Secretariat dated 19‑12‑1992 addressed to the Cabinet
Secretary containing the remarks of the President that the notes on the Cabinet
Committee on Energy should be brought to the notice of the concerned
Authorities’ alongwith minutes of the meeting (pages 138 to 140) containing the‑
following minutes:‑‑
“The
Provinces, which are directly concerned with such an important sector of the
economy viz. energy,‑ and are directly affected by any policy change in
it, have been completely excluded from participating in the process of approval
of operational plans, proposals, schemes and projects relating to this sector.
Even otherwise, the Constitution does not envisage such a situation inasmuch as
the Council of Common Interests, where all the Provinces are represented has to
formulate and regulate policies in relation to WAPDA, as per Article 153.”
(7) List
of total Ordinances issued and referred/not referred to Cabinet during
December, 19W to 18‑4‑1993 (pages 141 to 145), the abstract showing
the total Ordinances issued during this period was 78, Ordinances referred to
Cabinet were 50 and not referred to the Cabinet Were 28. The detail shows that
50 Ordinances were approved by the Cabinet and 28 not approved by the Cabinet
and not that they were not placed before the Cabinet;
(8) Harassment of Journalists and
Sedition case against “The News”, complaints
and Press clippings relating thereto (pages 146 to 184);
(9)
Reference filed by Mr. Abdul Rashid Qurcshi, Advocate with the Speaker,
National Assembly under Article 63(2) of the Constitution directed against
Ittefaq Group of Companies and through it against the petitioner (pages 185 to
191.);
(10)
President’s remarks conveyed to the Prime Minister on 17‑11‑1992 on
the Corporate Restructuring, System Expansion and Future Plans of Sui Northern
Gas Pipelines Ltd. (Disinvestment of Government Shares in SNGPL). The remarks
of the President are “Monetary expansion and Inflation are the real problems.
They must be addressed urgently before they and they are facets of the same
coin ‑get out of hand” (pages 192 and 193);
(11)
Irregular Appointments/Promotion cases listed on pages 194 to 220;
(12)
Press Clippings reproducing the complaint of the widow of late General Asif
Nawaz that her husband was poisoned (pages 227 to 229);
(13)
Press Clippings showing how frequently between October, 1992 and March, 1993
the National Assembly could not function for want of quorum (pages 254 to 275);
(14)
Press Clippings containing newspaper comments and comments of the Opposition
Leaders with regard to the 12th Amendment and the victimisation of the
Opposition ‑ 31 pages (pages 276 to 306);
(15)
List containing 12 cages of the President’s Observations on
Irregularities/Lapses on the part of Federal Government, Detail extending over
105 pages (pages 307 to 410).
(i) The First case is of 29‑4‑1992
and complains of Minister’s jurisdiction over the Tribal Areas which was denied
by saying that no political interference is expected in these areas and the
Prime Minister was cautioned in the following words:‑‑
It
would be noticed that this act of the Minister is not only violative of policy but also amounts to undue interference
in the tribal matters which is not acceptable. Such acts should not go
unnoticed because they are likely to create misunderstanding and disaffection
amongst the tribal elders on the one hand and the Governor and his political
administration on the other. Distribution of patronage in this blatant manner
is also likely to create a rift between various tribes and different parts of
tribal areas. Matters relating to tribal areas and individuals have to be very
carefully and responsibly handled for which the Constitutional and
institutional arrangements
must
be followed in letter and spirit.
The President
requests that the Prime Minister may initiate appropriate measures to correct
this situation.”
(ii) Another
note is dated 19‑11‑1992 in respect of FATA Administration of
Balochistan, wherein the President observed as hereunder‑‑‑
“P.M.
orders the setting up, of a Committee (suggested composition attached) to
enquire into the whole affair or pass other appropriate order in the case to
rectify the wrong being done to FATA through a gross misuse of authority.”
(iii) Islamabad Motorway Project‑‑
Report called for from Secretary Communications on‑ the basis of
complaints, appearing in two newspapers of. last week of January, 1992. Report
was furnished.
(iv) On a reported delay in supply of
electric water pumps to Zimbabwe and sewing machines to Zambia and Namibia
under the Africa Fund Programme, the President passed in his own hand the
following orders‑‑‑
“We
are not the monitors of such day to day executive routine. The suggested
administration and instructions should issue from the Prime Minister’s office
who should also know ‑‑ and a copy of the foregoing note be sent to
them ‑‑ how efficiently the system of administration is functioning
and what attention is being paid to matters of daily routine involving hardly
any (not legible) exercise.”
(v) A caution was communicated to the
Prime Minister by the President on 19‑12‑1992 on the subject of
visit of Tribal Maliks to Kabul on 16th May, 1992, in the following words:‑‑
“I
hope that those who encourage and helped the “adventure” will be more careful
and circumspect in future.”
(vi) The question of deficit of
Universities when placed before the President was ordered to be taken to the
Cabinet for thorough discussion and appropriate decision on 13‑9‑1992;
by
the President Secretariat on 13th April, 1993 enquiring under what provision of
Constitution and law a notification shifting the Supreme Court’s seat from
Rawalpindi to Islamabad was issued without the President’s prior approval;
(viii)
The Prime Minister’s summary on the administrative set‑up of Islamabad
Capital Territory submitted to the President on 24110‑1991 which was
returned by the President with the following remarks on 6th of May, 1992:‑‑
“The
changes, effected in the administrative set‑up of the Islamabad Capital
Territory in September 1991, carried serious legal and administrative
implications some of which had been highlighted by the President’s Secretariat
through U.0. No. 3012/202/26/Coord‑11, dated 22‑10‑1991
(Annex‑V). In the meanwhile, the present proposal of the Ministry of
Interior was received which aims at introducing major changes but without
explaining the justification or necessity for doing so. On the initiative of
the Prime Minister’s Secretariat, a meeting was held between the Secretary to
the President, Principal Secretary to the Prime Minister and Secretary Interior
on 10‑3‑1992 in order to unanimously resolve the issues involved. A
copy of the minutes of this meeting are at Annexure VI.
In
the light of the views ‑expressed at the meeting, it is proposed that the
original administrative arrangement for the Islamabad Capital Territory under
Chief Commissioner may continue, as before.”
(ix)
On 22‑12‑1991, the Prime Minister’s Secretariat was asked to
explain . to the President’s Secretariat the following:‑‑
10(a)
How was ICT declared as an Attached Department of Interior Division without
prior approval of the President?
(b) Under what authority of law, is the
administration of ICT being run in the absence of an officer authorised by the
President?”
(16)
President’s observations on Privatisation of State‑owned enterprises ‑the
addresses are Finance Minister and the Cabinet Secretary;
(17)
The Chief Minister of Sindh addresses a letter to the President on 21‑3‑1993
for proper representation of the Province in Energy, Highway and
Telecommunications decision‑making authorities in order to truly
reflects.
(18)
Letter of Chief Minister of’N.‑W.F.P. dated 9‑1‑1993 on the
same subject;
(19)
Press clippings with regard to 8th Ameqdmznt, Privatisation and other
complaints against the functioning of the Government (pages, 467 to 489);
(20)
Salman Taaseer’s Petition under Article 63(2) of the Constitution riled with the Speaker on 25‑1‑
1 W2 (pages 490 to 490);
(21)
Another. petition under the same law by Mr. Farooq Ahmed akbari addressed to
the Speaker dated 11‑1‑1992 (pages 497 to 500);
(22)
Third Petition under the same law by Mr. Abdur Rashid Quresh Advocate, dated 11
‑ I ‑ 1992 (pages 501 to 503);
(23)
Favouritism shown to Mr. Gohar Ayyub Khan, Speaker ‑‑ prepared
after the dissolution order (pages 504 to 516);
(24)
Expenditure by the Ex‑Prime Minister incurred in excess of his
Discretionary grant by drawing upon budgetary allocation of other Ministries,
Organizations etc.
(25)
Press clippings of 18‑4‑1993 mostly by individuals opposed to the
Prime Minister (pages 599 to 613);
(26)
On 12th April, 1993, on the appointment of Judicial Commission of Inquiry on
the allegations levelled by Begurn Nuzhat Asif Nawaz widow of late COAS General
Asif Nawaz, the following communication was received from the Presidency in the
Prime Minister’s Secretariat:‑‑
“Kindly
refer to the ‘attached press clipping from the daily “News”, dated 12th April,
1993 regarding serious allegations levelled by Begum Nuzhat Nawaz widow of late
General Asif Nawaz.
I
am directed by the President to request you to please appoint a High Level
Judicial Commission consisting of Judges of the Supreme Court and High Court to
enquire into the allegations at priority and submit a report alongwith their
recommendations.
16
the meanwhile immediate. interim measures may have to be taken in respect of
the two persons named by the lady as regards the functions of their office.”
(2:7)
Reply to this letter by the Principal Secretary to the Prime Minister dated 13‑4‑1993
in the following words:‑‑
“Kindly
refer to President Secretariat (Public) U.0. No.5(7)/ PS/Legal/93, dated 12th
April, 1993 on the subject noted above. The U.0. note was received by PSO to
Principal Secretary at around 10 p.m. on 12th April, 1993 and the 9 p.m. News
Bulletin had already announced the issue of notification by the Ministry of
Law, Justice and Parliamentary Affairs regarding the appointment by the Prime
Minister of a Commission of Inquiry comprising three Judges of Supreme Court.
It would be seen that the Prime Minister has taken immediate suo motu
cognizance of the allegations and appointed a Commission of Inquiry promptly. A
copy of the notification is enclosed.
Regarding
para. 3 of the U.0. note, it is not clear as to what action is envisaged to be
taken by this Secretariat “in respect of the two persons named by the lady as
regards the functions of their office” in anticipation of a judicial verdict on
the authenticity or otherwise of the allegations. It will be seen that in
accordance with clause (b) of para. 2 of the notification the Commission is
required to identify the person or persons responsible for the mischief if the
cause of death was other than natural. The Government will take prompt action
against the persons, if so named by the Commission, in accordance with the law.”
Volume
III of rile containing Annexure A‑7
(1) Interview of the ousted Prime
Minister appearing in monthly ‘Herald in, May, 1993;
(2)
Charge‑sheet/References against Nawaz Sharif and the Government prepared by the Combined
Opposition Parties;
(3) ‘Allegations against the relatives of
the Prime Minister;
(4) Complaints of harassment of
journalists;
(5) Plan for the privatisation of WAPDA;
Decision of the Cabinet Committee
on Privatisation;
Decisions
of. the Cabinet meeting held on 6th of April, 1991 in the Prime Minister’s Secretariat;
(7) A working paper on Pakistan
Telecommunication Corporation,_
(8) Privatisation of Muslim Commercial
Bank;
(9) Development in and around Raiwind;
(10)
Permission to new Commercial Banks;
(11)
Levy of customs duty on shredded and bundled waste and scrap.
Volume
IV of rile containing Annexure A‑6
(1) Press clippings about performance of
the petitioner’s Government and
the charges against it, during
the period 1991‑ 1993 (193 pages).
Though
at times documents and events of dates after 18‑4‑1993 have been
mentioned or included in the list we have in considering the case totally
excluded these because they raise no Constitutional question but rather deal
with the matters political and administrative and on no principle of
interpretation can be utilised for interpreting the events of earlier date
which raise and deserve purely Constitutional and legal consideration on
merits.
When
the learned Attorney‑General had concluded giving us the outline of his
argument I asked him to also look up the following four Constitutional points
because from the material brought on record it appeared that these questions
may also require fuller consideration. These questions were disclosed to the
parties in order to obtain proper assistance from them and to give
authoritative pronouncement if at all necessary.
(i)
I Whether the use of the
expression dismissal for the Prime Minister and for the Cabinet and the
expression of the conclusion “in any case the speech and his conduct amounts to
subversion of the Constitution”, in the dissolution order passed under Article
58(2)(b) of the Constitution did not amount to violation of the first part of
Fundamental Right 14 which guarantees in Pakistan that the dignity of man shall
be inviolable?
(ii) What was the design and object of the
receiving, retaining and utilising such a large number of resignations collect‑d
in the Presidency? Was it, as required under Rule 25 of the Rules of Procedure and Conduct of Business in
the National Assembly, ‑1992, intended to be relinquishment of the office
by elected representatives then or were intended to register a protest with the
President for taking appropriate action against‑ the Leader of the House.
In either case how was the partisanship of the Speaker at all relevant to non‑tendering
and nontransmission of such resignations to him.
(iii) Under the Constitutional provisions
Article 243(2)(c) as it stands after 8th Amendment is it discretionary for the
President to appoint only the Chairman of the Joint Chiefs of Staff Committee
or is it equally in his discretion to appoint the other Chiefs of the
Army-Staff, Naval Staff and of the Air Staff.
(,iv) Whether in the matter of the
enforcement of Fundamental Rights under Article 184(3) of the Constitution,
this Court has any discretion in the grant of relief or the relief follows as a
matter of course ex debito justiiae.
These specific questions were
put to the learned Attorney‑General to satisfy the salutary principle
underlying the statutory provision, contained in proviso to Rule 2 of Order XLI
of the Code of Civil Procedure, 1%)8. Additionally, for the reason that the
constraints of adversary litigation do not 6 inhibit the Court in the matter of
enforcement of Fundamental Rights. propose to preface the judgment with two
observations of my own which are relevant in the context of our Constitutional
history and these observations in fact control and pervade what follows in this
judgment. These may appear to be didactic, ponderous and trite but being a part
of the oath of all Constitutional functionaries should form a foundation of our
thoughts, actions and attitude in all our exertions on Constitutional and
political matters.
The
first is the misfortune that our Constitutions have ,not evoked that
commitment, respect, regard and attention even from the Constitutional
authorities and statutory functionaries which they deserve, and which, in any
other independent country, they receive. Our Constitutions have been abrogated,
held in abeyance for periods longer than promised and have been massively
deviated from. For the present our Constitution itself requires and commands
that obedience to the Constitution and law is obligation‑of every citizen
wherever he may be and of every other person for the time being within Pakistan
(Article 5(2)1:
Any
person who abrogates or attempts or conspires to abrogate, subverts or attempts
or conspires to subvert the Constitution by use of force .or show of force or
by other unconstitutional means shall be guilty of high treason (Article 6 of
the Constitution). The Parliament is to provide by law punishments of persons
found guilty of high treason. While guaranteeing protection against
retrospective punishment, the Constitution, ‑ under Article 12, makes an
exception of the laws making acts of abrogation or subversion of a Constitution
in force in Pakistan at any time since the twenty third day of March, one
thousand nine hundred and fifty‑six an offence. Act LXVIII of 1973 (High Treason (Punishment) Act, 1973) was
enforced on 29‑9‑1973. It provides as hereunder:‑
1. Punishment for high treason. etc
.‑‑‑A person who is found guilty‑
(a) of having committed an act of
abrogation or subversion of Constitution in force in Pakistan at any time since the twenty‑third day of
March, 1956; or
(b) of high treason as defined in Article
6 of the Constitution,
shall
be punishable with death or imprisonment for life.
3. Procedure.‑‑‑No
Court shall take cognizance of an offence punishable under this Act except
upon a complaint in writing made by a person authorised by the Federal
Government in this behalf.”
In
Corpus Juris Secundum (Volume 87) on the subject of “Treason” the following
observations occur with regard to the nature and elements of the offence:‑‑
“Treason
is regarded as the highest crime known to the law and is the most serious
offence that may be committed against the United States. Our enquiries made
from the Federal Government reveal that though the Constitution was framed in
1973 and the Parliament also discharged its
duty
on 29‑9‑1973 by framing the requisite law on the subject, in terms
of section 3 of the High Treason (Punishment) Act, 1973, the Federal Government
has not so far designated the authorised person on whose complaint such an
offence can be taken cognizance of by the Courts. The failure here is not of
the Constitution, not of the Parliament but of the executive Government and
that too since 1973 of not giving a salutary Constitutional provision a
meaningful content and operational mechanism, thereby frustrating it
altogether.
The
other observation with which I want to preface what follows in the judgment are
three rules of interpretation peculiar to the Constitution J distinguishing it
from every other instrument. These principles stand recognised in all countries
having written Constitutions. The first principle V1 interpretation was
expressed tersely in Paul M. Swcezy v. State of New Hampshire by Louis C.
Wyman, Attorney‑General (354 US 234 = 1 L ed 2d 1311 = 77 S Ct 1203), in
the following words:‑‑
“While
the language of the Constitution does not change, the changing circumstances of
a progressive society for which it was designed yield new and fuller import to
its meaning. See Hurtado v. California (110 US 516, 528, 529 = 28 L ed 2321 236
= 4 S Ct 111, 292; M’Culloch v. Maryland (US) 4 Wheat 316, 4 L ed 579).”
The
second principle which need not be supported by any authority is that the
entire Constitution has to be read as an integrated whole, and no one particular provision destroying the other but
each sustaining the other. This Is the rule of harmony, rule of completeness
and exhaustiveness and the rule of paramountcy of the written Constitution.
The third principle equally
entrenched is that the words of the written Constitution prevail over all unwritten
Conventions, Precedents and Practices.
What
judgment and value has to be brought to bear on the Constitutional provisions
has been well‑expressed in the following words in Chapter 19 “Logic,
Experience and Intuition”, in “A New World of Law” by C. Wilfred Jenks (1961)),
as hereunder:‑ (Underlining throughout the judgment is ours for
emphasizing the portions underlined):
“in the evaluation of facts, logic, experience
and intuitions of public policy play mutually complementary patios. Without
logic the law would be wholly at large, at the mercy of every gust of chance
and M favour; without experience, without clear intuitions of public policy,
the consistency of concepts would exact too high a price of inconsistency with history, practical
convenience and the welfare of society. The logic of law is the discipline
which gives it such form and consistency as it may attain at successive stages
of its development. Experience is the rich inheritance of its past development.
Neither logic nor experience affords a sufficient, nor sometimes a relevant, IM
answer to essentially new problems. To
resolve such problems we must have recourse to the deeper recesses of the mind,
The facts define the problem. Neither they nor logic can solve it, Imagination
furnishes an answer. The answer must be reconcilable with the facts and
defensible in logic. but the
test of its relevance and adequacy, neither the facts nor logic but purposes
and values,”
Coming to the merits of the dissolution
order the first ground mentioned therein is as hereunder:‑‑
“The mass resignation of the Members of
the Opposition and of considerable numbers from the Treasury Benches, including
several Ministers, inter alia, showing their desire to seek fresh mandate from
the people have resulted in the Government of the Federation and the National
Assembly losing the confidence of the people, and that the dissension therein,
has nullified its mandate.”
The questions for consideration are
whether in a Constitution like ours the most resignations of the Members of the
Opposition and of considerable number’s from the Treasury Benches, including
several Ministers showing their desire to seek fresh mandate from the people is
indicative of loss of the confidence of the people of the Pakistan in the
National Assembly, whether the differences within the party nullify the mandate
of the majority party to run the Government, and finally whether these
considerations are at all relevant, can be taken into consideration, outside
the procedure prescribed in the Constitution for showing lack of confidence in
the Government and in the Assembly, and for taking action under Article
58(2)(b) of the Constitution.
Resignation from a public office has a
very definite connotation, In Black’s
Law Dictionary, it has been defined as “Formal renouncement or relinquishment of an office. It must be made
with intention of relinquishing the office
accompanied by act of relinquishment.” In Article 64 of the constitution
resignation has been provided for in the
following words‑.‑‑
“64. Vacation
of scats.‑‑(l) A member of Majlis‑e‑Shoora
(Parliament) may by writing under his hand addressed to the Speaker or, as the
case may be, the Chairman, resign his seat, and thereupon his seat shall become
vacant.
(2) A
House may declare the scat of a member vacant if, without leave of the House,
he remains absent for forty consecutive days of its sittings.”
In two decisions of this Court the
question of resignation by elected officeholders was considered.
In the case of Mr. A.K. Fazialul Quader
Chaudhury v. Syed Shah Nawaz and 2 others (PLD 1966 SC 105), it was held that
not only is the resignation required to be addressed to the Speaker but that it
should be intended to be passed on to the Speaker of the Assembly. Pivotal role
which the Speaker plays in such a matter and the sanctitv of the elected office
was further made clear in the case of Mirza Tahir Beg v. Syed Kausar Ali Shah
and others (PLD 1976 SC 504) in the following words:‑‑
“Needless
to say that the Speaker in a Parliamentary form
of Government holds an office of highest
distinction and has the sole responsibility cast on him of maintaining the
prestige and the dignity of the House and each and every member composing the
House. It is precisely for this reason that the Constitution has ordained that
a resignation by a member is effective only when it is ‘addressed’ to the
Speaker: it was not intended to be an idle formality. To relinquish a
Parliamentary seat by resignation is a grave and a solemn act, By and large our
political institutions are fashioned on the pattern of those obtaining in
England and it is a settled principle of parliamentary law in England that
a member of Parliament after he is duly chose, cannot relinquish his scat by
unilaterally resigning his membership. In order to evade this restriction a
member who wishes to relinquish his scat, accepts office under the Crown which
legally vacates his seat. This is enough to underline the gravity of the
matter. (See May’s Parliamentary Practice, 18th Edn., p. 45)
On 5th August, 1992, National Assembly
of Pakistan framed its own Rules of Procedure and Conduct of Business in the
National Assembly under Article 67(1)
of the Constitution. Rule 25 comprehensively deals with the matter of
resignation, which read with Article 64 and the two decisions of this Court
completely cover the law on the subject.
“25. Resignation of seat.‑‑(1)
A member may, by writing under his hand addressed to the Speaker resign his
scat.
(2) If, ‑‑
(a) a member hands over the letter of resignation
to the Speaker personally and
informs him that the resignation is voluntary and genuine and the, Speaker has
no information or knowledge to the contrary; or the Speaker receives the letter
of resignation by any other means and
(b)
he, after such inquiry as he thinks fit, either himself or through the National
Assembly Secretariat or through any other agency is satisfied that the
resignation is voluntary and genuine,
the
Speaker shall inform the Assembly of the resignation:
Provided
that if a member resigns his seat, when the Assembly is not in session, the
Speaker shall direct that intimation of his resignation specifying the date of
resignation be given to every member immediately.
(3) The
Secretary ‑General shall, after the Speaker satisfies himself that the
letter of resignation is voluntary and genuine, cause to be published in the
Gazatte a notification to the effect that the member has resigned his seat and
forward a copy of the notification to the Chief Election Commissioner for taking
steps to fill the vacancy thus
caused.
(4) The date of resignation of a member
shall be the date specified in writing by which he has resigned or if no date
is specified therein the date of receipt of such a writing by the Speaker.”
Some
of the features of the eighty‑eight resignations, copies of which have
been riled in Court, to be particularly noted and relevant for these
proceedings are as hereunder:
(i) Most of the resignations are
undated, even though some have date
(ii) All of them, except one, are
addressed . to the Speaker of the National Assembly.
(iii) None of them expresses or shows,
otherwise lack of confidence in the Speaker.
(iv) Majority of the resignations do not
give specific reasons for the resignation.
(v) Quite a few resignations mention
resignation by way of protest. The, exact nature of protest, the person against
whom it is directed remained undisclosed,
Some
of the resignations from the National Assembly (Not as a Minister/Advisor etc.)
which are relevant for determining any one of the following questions are
reproduced verbatim:
(i) approximately the time when they
were submitted;
(ii) the specific reason for their
submission, personal inability, political inability, failure of their own
party, or failure of any opposing party or of the party running the Government;
(iii) the resignations were submitted for
vacating parliamentary seat or to
achieve any other collateral
object;
(iv), resignations were
improperly drawn up.
REPRODUMON
OF SOME OF THE RESIGNATIONS
(1) “Mr. Speaker,
National Assembly,
Islamabad.
As
the new Government is going ahead, with undemocratic actions and
disqualification of Pakistan People’s Party Leadership and elected Members, I
hereby tender my resignation as member of National Assembly as mark of protest.
(2) “The Speaker National Assembly.
Letter
of resignation.
(Sd.)
Syed
Zafar Ali Shah,
NA 159.”
On
account of ‘ discriminatory traeatment against the leader of opposition, I
hereby tender my resignation from the NA.
(Sd.)
Ch. Muhammad Niwaz, NA 84 Gujrat.”
(3) “The Speaker National Assembly.
Letter
of resignation.
Sir,
,
I
tender resignation from my NA Seat on account of discrimination and atrocious
treatment of the Leader of the Opposition.
(Sd.)
(Ch. Altaf Hussain)
NA
45‑Jhelum(l).”
(4) “The Speaker,
National Assembly of Pakistan,
Islamabad.
Dear
Sir,
I
hereby tender my resignation from MY seat NA‑9 Kohat as a mark of protest
against high‑handed and mala fide actions of the
Government.
Yours
faithfully,
(Sd.) IffikhaT Gllani:’
(5) ‘The Speaker,
National
Assembly of Pakistan.
This
is to inform you that I have hereby tendered my resignation as a protest
against the high‑handed and mala fide action of the Care. taker regime.
(Sd.)
Makhdum Syed Faisal S. Hayat, NA 69, Jhang IV.”
(6)
“To
The
Speaker, National Assembly of Pakistan, Islamabad.
Dear
Sir,
I
do not think that I can serve any useful purpose by remaining a member under
the present political situation prevailing in the country. Hence I have decided
to resign from my seat in the National Assembly. Please accept my resignation
and oblige.
Yours
sincerely,
(Sd.)
Sardar Dildar Ahmad Checma.”
(7) To
The
Speaker, National Assembly of Pakistan, Islamabad.
Dear
Sir,
Under
the present circumstances I do not think that I am serving any useful purpose
in the National Assembly, hence I have decided to vacate my seat. Please accept
my resignation.
Yours
sincerely,
Sd.
Mian
Zahid Sarfraz,
NA.64.”
(8)
“To
The
Speaker, National Assembly of Pakistan, Islamabad.
Resignation
from the membership of National Assembly.
Dear
Sir,
I
Syed Tanvir‑ul‑Hassan Gilani, Member National Assembly from
Constituency N.A. 116 desire to resign from the membership of the National
Assembly. National Assembly has lost the confidence of the People of Pakistan
because of the Corrupt Government and the way the disinvestment has been
carried out. Interference of the Federal Government the Provincial Autonomy, I
feel that to continue as member of the National Assembly shall not be
beneficial to the Nation. Kindly accept my resignation from National Assembly.
Thanks.
(9)
“To
The
Speaker of the National Assembly of Pakistan, Islamabad.
Yours sincerely
Syed
Tunvir‑ul‑Hosan Gilani
NA. 116.’
At, Subject: My
resignation from the National Assembly of Pakistan.
Dear
Sir,
I
represent Constituency No. NA 158 (Naushchra Feroze 1) in the National Assembly
of Pakistan.
I
was elected on the U.I. Ticket. I have been carefully watching the performance
of Nawaz Sharif Government for the last 2‑1/2 years This Government
cannot claim any success or achievement in any field. The ever‑increasing
prices of the essential commodities deteriorating law and order, utter failure
of the foreign policy, unemployment, corruption at the highest level,
inflation, political victimisation, violation of the Constitution, favouritism,
nepotism, gross financial indiscipline and deviation from the I‑I.I.
manifesto and the break‑up of the I.J.1. leave me with no other option
but to withdraw from the National Assembly.
Hence
I do hereby tender my resignation as a member of the National Assembly of
Pakistan.
(Sd.)
Ghulam
Mustafa Jatoi”
(10)
“The Speaker, National Assembly of Pakistan Islamabad.
Dear
Sir,
(11)
“The Speaker, National Assembly of Pakistan, Islamabad.
This
is to inform you that I hereby resign from my seat as member National Assembly
N.A.‑160 Pakistan.
I
was elected on I.J.1. Ticket and I.J.1. subsequently has’ disintegrated, and
the present political condition in the country indicates that the Prime
Minister has not lived up to the expectation of the electorate and does not
command majority in the House.
I
feel I am not justified to represent my Constituency under the
present
circumstances.
I
request you to please approve my resignation immediately.
Yours sincerely, (Sd.)
Ghulam Murtava Khan
Jatoi. M.N.A.”
I
hereby resign from my seat in the National Assembly under rule 64(l) of the
Constitution of the Islamic Republic of Pakistan.
(Sd.) Mir Ha7ar Khan
Bijarani,” M.N.A.
NA 157, Jacobabad If.”
(12)
“The Speaker/Deputy Speaker, National Assembly of Pakistan, Islamabad.
Dear
Sir,
I
write this to inform you that I am resigning from my membership of the National
Assembly in which I was elected in 1990 from NA‑106.
This
resignation may be accepted under the Rules of Conduct and Business of the
House and the Constitution.
Kind
regards.
(13)
“To
The Speaker, National Assembly
of Pakistan.
Respected
Sir,
M.N.A.
NA 106
I
Jam Mashooq Ali, Member, National Assembly of Pakistan (NA‑181 Sangher
If) from Sindh Province, hereby resign from my seat due to my personal reasons.
Kindly
accept my resignation.
Yours sincerely,
(Sol.)
Sardar
Asif Ahmad Ali,
Yours sincerely,
(Sd.)
Jam Mashooof Ali.’
(14)
“My dear Mr. Speaker,
Under
Article 04(l) of the Constitution of the Islamic Republic o Pakistan, I hereby
submit my resignation from my National Assembly Seat N.A.‑134, Rajanpur.
Kindly forward it to the Chief Election Commissioner for necessary action.
Yours
faithfully, (Sol.) Mir Balakh Sher Mazari.’
(15)
“The Speaker,
National Assembly of Pakistan
Subject:
Resignation
Under
Article 64(l) of the Constitution of the Islamic Republic of Pakistan, I hereby
resign my scat (N.A.‑74, Gujranwala. 1) in the National Assembly of
Pakistan.
(Sd.)
Hamid Nasir Chaltha.”
(16)
“Speaker, National Assembly of Pakistan, Islamabad.
Subject:
Resignation from M.N.A.ship of Constituency N.A. 195
Dated
15‑4‑1993
In
discharge of my duties assigned to me by the masses of my constituency, I feel
regret, but justified to submit my resignation from my scat of the National
Assembly on the following reasons:
The
Government of Prime Minister Mian Nawaz Sharif has failed to achieve the
mandate given to him because of its poor economic and administrative policies.
There
exists no hope from the present Government of solving the deteriorating law and
order situation of the country in general and Sindh in particular.
The
Prime Minister did not solve his earlier made promises of solving problem like
Education, Health and Underpayment of Sindh Urban.
In
the light of above I submit my resignation from NA‑195 and strongly
demand you to dissolve the National Assembly and order for fresh election to
fulfil your Constitutional responsibilities.
(Sd.)
Rchan Umer Farooqui, NA‑195.”
(17) “Rel No. WA/Reg. PD. 01 /93 dated 14‑4‑93
The
Speaker,
National
Assembly of Pakistan, Islamabad.
Subject:
Resignation from MNAship of Constituency NA‑196.
In
discharge, of my duties assigned to me by the masses of my Constituency I ‘feel
regretted but justified to submit my resignation from my seat of the National
Assembly on the following reasons:
The
Government of the Prime Minister Mian Nawaz Sharif has failed to achieve the
mandate given to him because of its poor economic and administrative policies.
There
exists no hope from the present Government of solving the deteriorating law and
order situation (if the country in general and of the Sindh in particular.
The
Prime Minister did not solve his earlier made promises of solving’ problems
like Waterlogging, Education, Health and Unemployment of Sindh Urban.
In
the light of above I submit my resignation from NA,196 and strongly demand you
to dissolve the National Assembly and order for fresh electorate to fulfil your
Constitutional responsibilities.
(Sd.)
Wasim Ahmed, NA-196.”
The
explanation given for submission of these resignations and their reception by
the President of Pakistan appears in the written statement as hereunder:‑‑
“It
is submitted that it is for the members of the National Assembly to select the
mode of showing their protest and lack of confidence in the petitioner’s
Government, National Assembly and the Speaker whether in or outside the House.
In the instant case they have addressed their resignations to the Speaker of
the National Assembly, but sent them to the President to register with the Head
of the State their protest and as an expression of lack of confidence in the
National Assembly, the Speaker and the Federal Government. The further reason
was that the Speaker had not in the past acted upon any motion directed against
the Prime Minister or any other Minister or member of the National Assembly
supporting the Government or the Government itself and, as widely known, the
concerned members had shown lack of confidence in the Speaker, who according to
the general perception was in collusion with the former Prime Minister and was
not acting independently. Speaker was getting preferential and special
treatment in special allocation of funds for his constituency. As the Speaker’s
conduct was objectionable and open to question, the concerned MNAs sent their
resignations to the President, so that their protest etc., expression of lack
of confidence be properly registered. The circumstances, background and the
factors responsible for the handing over of the resignations by the Members to
the President are as above. It demonstrated that the said Members had lost
confidence in the National Assembly, the Federal Government and the Speaker,
and that the mandate had been nullified. It is further submitted that the
Speaker has to receive resignations only for the purpose. of creating a vacancy
and consequent by‑elections. The circumstances in which the resignations
were handed over to the President, have been mentioned above and the President
could form his opinion in that behalf. Rest of the contentions arc repelled.”
In
the middle of the arguments the learned Attorney‑General gave a written
explanation for their submission to the President as hereunder:.;‑
“The
resignations, were submitted by responsible members of the National Assembly
including the Leader of the Opposition, the former Prime Minister and Mr.
Ghulam Mustafa Jatoi and they were meant to be resignations as well as
protests. The President in normal course could have forwarded them to the
Speaker, and. under the Constitution and Rules of the National Assembly the
vacancies would have inevitably occurred. could have formed an opinion by the
result of the vacancies that would occur that ‘the Government of the Federation
could not be run in accordance with the Constitution’; and that the Assembly
had lost the mandate.”
At
the conclusion of the argument, the learned Attorney‑General submitted a
statistical analysis of the effect of these resignations on the voting pattern
of the electorate as hereunder‑
“Original
Position ‑ 1990
(Percentage
of valid Votes cast)
PDA ------------- 37.37%
Haq
Parast -------------- 36.83%
JUI
(F)
2.94%
Others
17.32%
Position
on 18‑4‑1993
(Percentage
of valid Votes cast)
lJI
(minus JI) 28.15
JI 2.23
Care
‑taker
PDA.
36.83%
J
L (F) 2.94%
PML
(Q)
0.04%
iWP
0.61%
NPP
50.92%
JUP
(N)
1.47%
PKMP
0.35%
ANP
(H)
1.68%
PML
(J) 7.00%
NDA
…….
others
less Haq Parast 13.16% 13.16%
Grand
total:
94.46%
Resignations
are resignations. If they are not resignations they are not worth the paper on
which they arc written. In view of the established Constitutional and legal
position in this country and abroad with regard to resignation from office by
elected representative none so elected can draft a resignation, address it to
the proper authority and yet not transmit to the addressee so as to use it, or
permit its use by others as a negotiable instrument or as a weapon of offence
directed against the opponents. Any one engaging in such an activity and
associating himself with it is not only grossly violating the Constitution but
also indulging in a highly politically unethical conduct. That it happened on
such a large scale in this case, at such a high level, and outside the
Parliament is deplorable. Before any one rejects parliamentary democracy as
unsuited to our condition, let him see the mutilation of it, the level and by
persons at whose hands it has taken place.
In
Khawaja Ahmad Tariq Rahim v. Federation of Pakistan through Secretary, Ministry
of Law and Parliamentary Affairs and another (PLD 1992 SC 646), the
Constitutional foundations for deprecating such an offensive conduct were
indicated in the following words:‑‑
“The
preamble to our Constitution prescribes that ‘the State shall exercise its
powers and authority through the chosen representatives of the people.’
Defection of elected members has many vices. In the first place, if the member
has been elected on the basis of a manifesto, or on account of his affiliation
with a political party or on account of his particular stand on a question of
public importance, his defection amounts to a clear breach of confidence
reposed in him by the electorate. If his conscience dictates to him so, or he
considers it expedient, the only course open to him is to resign, to shed off
his representative character which he no
longer represents and to right a re‑election. This will make him
honourable, politics clean, and emergence of principled leadership possible.
The second and more important, the political sovereign is rendered helpless by
such betrayal of its own representative. In the normal course, the elector has,
to wait for years, till new elections take place, to repudiate such a person.
In the meantime, the defector flourishes and continues to enjoy all the wordly
gains. The third is that it destroys the normative moorings of the Constitution
of an Islamic State. The normative moorings of the Constitution prescribe that ‘sovereignty
over the entire universe belongs to Almighty Allah alone, and the authority to
be exercised by the people of Pakistan within the limits prescribed by Him is a
sacred trust’ and the State is enjoined to ‘exercise its powers and authority
through the chosen representatives of the people’. An elected representative
who defects his professed cause, his electorate, his party, his mandate,
destroys his own representative character. He cannot on the mandated
Constitutional prescription participate in the exercise of State power and
authority‑ Even by’ purely’ secular
standards carrying on of the Government in the face of such defections,
and on the basis of such defections, is considered to be nothing but ‘mockery
of the democratic Constituti6nal process’.”
The
President of Pakistan too in speech delivered on 6th August, 1990, expressed
the following opinion on the subject:‑‑
“Everyone
of you is, to some degree, a witness to things I am referring to. Who of you
has not heard about the highly disgraceful violation of people’s mandate and of
its treatment as a commodity of trade? Political stock exchanges were opened
and political horse‑trading was
indulged
in unabashedly. At the time of No‑confidence Motion against the Prime
Minister, such lawful and unethical methods were employed to muster support for
or against it that, our National Assembly became a laughing stock throughout
the world. Members of the Assembly remained, in a way, in confinement like
hostages and were kept” from voting according to their conscience through
inducements or threats. As somebody put it, some sold their conscience for
ministries and some for plots of land, some mortgaged their loyalties in return
for‑ loans and some for promised gains. Those who apparently professed
consistency of loyalty also claimed and received their price by threatening to
cross over. And thus all those, who regarded politics as trade, cash on every
turn of events. None of them bothered to realise that he was committing a
violation of oath taken in the name of Allah, or that without the voters’
consent, he had no right to abandon the party on whose ticket he had been
elected in party‑based polls. To do so was to betray the people’s trust,
which is an act of sin in the, eyes of God. As a result of such a conduct of
the elected representatives, our adversaries got a chance to remark that a take‑over
bid can be made for Pakistan’s National Assembly in a sum of two to two‑and‑a‑half
billion rupees.” I I
In
the Constitution there is ‘clause (5) of Article 01 which comprehensively deals
With the subject‑matter ‘of confidence and lack of confidence:‑‑
“(5) The Prime Minister shall hold office
during the pleasure of the President, but the President shall not exercise his
powers under this clause unless he is satisfied that the Prime Minister does
not command the confidence of the majority of the members of the National
Assembly, in which case he shall summon the National Assembly and require the
Prime Minister to obtain a vote of confidence from the Assembly.” ‑
The
only way open to the President under the Constitution for coming to e
conclusion whether the Prime-Minister does or does not command in confidence of
the majority of the National Assembly is by summoning the National Assembly and
requiring the Prime Minister to obtain vote of confidence from the Assembly.
Any other method adopted for achieving the object, for forming an opinion, for
giving effect to it is impermissible.
There
are three positive compulsive indicators in this clause. Firstly, there is the
use of negative imperative “the President shall not exercise his power”. It
operates as a mandatory prohibition. The second is the statement of the
jurisdictional requirement and coupling it to the exercise of power by the use
of the word “unless”. The jurisdictional requirement is satisfaction of the
President that the Prime Minister does not command the‑confidence of the
majority of the members of the National Assembly. Thirdly, the only course.
left Constitutionally open for the President for arriving at his satisfaction
in this matter is. to “summon the National Assembly and require the Prime
Minister to obtain a vote of confidence from the Assembly’. Such a
comprehensiveness, such a clarity and such attention to the details is all in
strict conformity with the , established conventions of Parliamentary
democracy, as practised in countrics4 having no written Constitution.
The
word “shall”, according to Black’s Law Dictionary, is general imperative or
mandatory. it is a word of command, and one which has always or which must be
given a compulsory meaning; as denoting obligation. It has a peremptory meaning
and is generally imperative or mandatory. Balicntine’,,; Law Dictionary defines
this word as a mandate where appearing in a
Constitutional provision. It further observes the word “shall” be held
to be merely directory when no advantage is lost, when no right is destroyed,
when no benefit is sacrificed, either to the public or to any individual, by
giving it that construction. In 16 American Jurisprudence 2d Ed. at page 507
the following comments have been made on the basis of Court decisions with
regard to prohibitory language:‑‑
Prohibitory
language stated in a Constitution is nearly always construed as mandatory.”
The
general rule has been laid down that if directions are given should be
respecting that time: and mode of, proceeding in which a power exercised, there
is at least a strong: presumption that,, the people ‑designed it to be
exercised in that time and mode only. And.. Constitutional provisions consider
the policy of a provision whose language seems plain and positive. Although it
has been stated that even in the absence of a declaration that its provisions
are mandatory and prohibitory, the Courts would not treat the provisions of a
Constitution as merely directory or unessential, it has also been V suggested
that the reason for the insertion of a specific statement on the matter in the
Constitution of one State was that certain decisions had previously held that
the provisions of the State’s earlier Constitution regarding the titles of
legislative acts were directory and not mandatory.”
In
Corpus Juris Secundum (Volume 16) at page 175 a very lucid expression of the
rule of construction of such following words:‑‑
“The
word ‘shall’ or ‘ought, as used in a Constitutional provision, is usually
imperative or mandatory Mandatory Constitutional provisions are, binding on all
departments of the Government. Long usage can neither repeal, nor justify the
violation of, such provisions, and disobedience or evasion is not permissible,
even though the best interests of the public might apparently be promoted in
some respects ...... Restrictions and
prohibitions in Constitutional provisions are mandatory and must be obeyed. Generally, Constitutional
provisions that designate in express terms the time or manner of doing
particular acts and that are silent as to performance in any other is manner
arc mandatory and must be followed. Such provision. arc, in general , exclusive
in respect of the manner of performance impliedly forbid performance in a substantially different
manner.”
In
the Constitutional provision the word “not” following “shall” makes the
requirement of the provision negative imperative leaving no scope for a
departure therefrom. The word “unless” also limits and identifies the
jurisdictional requirement and the prescription of the method by which that
jurisdictional requirement is to be satisfied. The use of the word “unless”
according to BBC English Dictionary is as follows:‑‑
“You
use unless to introduce the only circumstances in which the event you are
mentioning will not take place.”
All
this attracts the application of well‑known maxim ‘Expression unius est
exclusio alterius’. This maxim has been explained in the ‘Construction of
Statutes by Earl T. Crawford in section 195 as hereunder:.‑
195.
Express mention and implied exclusions (Expressio unius est exclusio
alterius)As a general rule in the interpretation of statutes, the mention of
one thing implies the exclusion’ of another thing. it therefore logically
follows that if a statute enumerates the things upon which it is to operate,
everything else must necessarily, and by implication, be excluded from its operation
and effect. For instance if the
statute in question enumerates the matters over which a Court has jurisdiction, no other matters may be
included. Similarly, where a statute
forbids the performance Of certain things, only those things
expressly
mentioned arc forbidden. So also, if the statute directs that certain acts shall be done in a
specified manner, or by certain person,
their performance in any other manner than that specified, or by any other person than one of those
named, is impliedly prohibited.”
The
decision of the Privy Council in Alhaji D.S. Adegbenro’s case (1963) Appeal
Cases 614) is very instructive on the subject and has some resemblance on facts
to the case in hand. That case concerned the right of the Governor of the
Western Region of Nigeria to remove a Premier from office on the ground that it
appeared to him that the Premier no longer commanded support of a majority of
the members of the House of Assembly, although there had been no adverse vote
in the House. In removing the Premier from office the Governor acted upon
receipt of a letter, dated May 21, 1%2, signed by 66 members of the House of
Assembly in which it was stated that they no longer supported Chief Akintola.
The House of Assembly was composed of 124 members. Nigeria had a written
Constitution, relevant clauses of its Article 31 being as hereunder:‑‑
“33. (1) There shall be a
Premier of the Region, who shall be appointed by the Governor.
(2) Whenever the Governor has occasion to
appoint a Premier he shall appoint a member of the House of Assembly who
appears to him likely to command the support of the majority of the members of
the House.
(3) There shall be, in addition to the
office of Premier, such other offices of Minister of the Government of the
Region as maybe established by the Legislature of the Region or, subject to the
provisions of any Regional law, by the Governor, acting in accordance with the
advice of the Premier.
(4) Appointments to the office of
Minister of the Government of the Region other than the office of Premier shall
be made by the Governor, acting in accordance with the advice‑of the
Premier:
Provided
that at least two Ministers shall be appointed from among the members of the
House of Chiefs . .........
(8)’ The office of the Premier shall become
vacant‑‑‘
(a) when, after any dissolution of the
Legislative Houses of the Region, . the Premier is informed by the Governor
that the Governor is about to reappoint him as Premier or to appoint another
person as Premier; or
(b) if he ceases to be a member of the House
of Assembly otherwise than by reason of a dissolution of the Legislative
Houses.
(9) The office of a Minister of the
Government of the Region other than the Premier shall become vacant if the
office of Premier becomes vacant.
(10)
Subject to the provisions of subsections (8) and (9) of this section, the
Ministers of the Government of the Region shall hold office during the Governor’s
pleasure:
Provided
that‑‑
.(a)The
Governor shall not remove the Premier from office unless it appears to him that
the Premier longer commands the support
of a majority of the members of the House of Assembly; and
(b)the
Governor shall not remove a Minister other
than the Premier from office except in accordance with the advice of the
Premier.”
Following
propositions of law were laid down by the Privy Council while reversing the
decision of Nigerian Federal Supreme Court:‑‑
(1)
Words of the written Constitution govern rather governed by British
Parliamentary Convention. The Court observing As hereunder:‑‑
“Lord
Bryce once said, the British Constitution ‘works by‑a body of
understandings which no writer can formulate;’ whereas the Constitution of
Western Nigeria is now contained in a written instrument in which it has been
sought to formulate with precision the powers and duties of the various
agencies that it holds in balance. That instrument now stands in its own right;
and, while it may well be useful ‘on occasions to draw on British practice or
doctrine in interpreting a doubtful phrase whose origin can be traced or to
study decisions on the Constitutions of Australia or the United States where
federal issues are involved, it is in the end the wording of the Constitutions
itself that is to be interpreted and applied, and this wording can never be
overridden by the extraneous principles of other Constitutions which are not
explicitly incorporated in the formulae that have been chosen as the frame of
this Constitution.”
(2)Pleasure
in appointment and holding of office unless ‑qualified also includes
power of dismissal.
The
Court observing as hereunder:‑‑
“It
is clear, to begin with, that the Governor is invested with some power to
dismiss the Premier. Logically, that power is a consequent of the enactment
that Ministers shall hold office during the Governor’s pleasure, for, subject
to the saving conditions of provisos (a) and (b) that follow, the Governor has
only to withdraw his pleasure for a Minister’s tenure of office to be brought
to an end. Where the Premier’s office is concerned it is proviso (a) that
limits the Governor’s power to withdraw his pleasure constitutionally, for by
that proviso he is precluded from removing the Premier from office ‘unless it
appears to him that the Premier no longer commands the support of a majority of
the members of the House of Assembly’. By these words, therefore, the power of
removal is at once recognised and conditioned: and, since the condition of
Constitutional action has been reduced to the formula of these words for the
purpose of the written Constitution, it is their construction and nothing else
that must determine the issue.”
(3) Limitation cannot be read in
general words used in the Constitutional provisions conferring power.
The
Privy Council observing as hereunder:‑‑
“The
difficulty of limiting the statutory power of the Governor in this way is that
the limitation is not to be found in the words in which the makers of the
Constitution have decided to record their description of his powers. By the
words they have employed in their formula, ‘it appears to him,’ the judgment as
to the support enjoyed by a Premier is left to the Governor’s own assessment
and there is no limitation as to the material on which he is to base his
judgment or the contacts to which he may resort for the purpose. There would
have been no difficulty at all in so limiting him if it had been intended to do
so. For instance, he might have been given power to act only after the passing
of a resolution of the House ‘that, it has no confidence in the Government of
the Region’, the very phrase employed in an adjoining section of the
Constitution (see section 31(4), proviso (b) to delimit the Governor’s power of
dissolving the House even without the Premier’s advice. According to any
ordinary rule of construction weight must be given to the fact that the Governor’s
power of removal is not limited in such precise terms as would confine his
Judgment t( (lie actual proceedings of the House unless there arc
compulsive reasons, to be found in the context of the Constitution or to be
deduced from obvious general principles, that would impose the mote limited
meaning for which the respondent contends.”
(4)
Court should not be swayed by considerations by Policy a d Propriety
while interpreting provisions of a written Constitution.
The
Privy Council observed as hereunder:‑
“But, while there may be formidable arguments in favour of the
Governor confining his conclusion on such a point to the recorded voting in the
House, if the impartiality of the constitutional sovereign is not to be in
danger of compromise, the arguments are considerations of policy and
propriety which it is for him to weigh on each particular occasion: they arc
not legal restrictions which a Court of law, interpreting the relevant
provisions of the Constitution, can import into the written document and make
it his legal duty to observe. To sum up, there arc many good arguments to
discourage a Governor from exercising his power of removal except upon
indisputable evidence of actual voting in the House, but it is nonetheless impossible
to say that situations cannot arise in which these arguments are outweighed by
considerations which afford to the Governor the evidence he is to look for,
even without the testimony of recorded votes.”
5)
British Constitutional history offers a negative guide:
The
Privy Council made the following observations on this subject‑.‑
“The
first is that British Constitutional history does not offer any but a general
negative guide as to the circumstances in which a sovereign can dismiss a Prime
Minister. Since the principles which are accepted today began to take shape
with the passing of the Reform Bill of 1832 no British Sovereign has in fact
dismissed or ‑removed a Prime Minister, even allowing for the ambiguous
exchanges which took place between William IV and Lord Melbourne in 1834.
Discussion of Constitutional doctrine bearing upon a Prime Minister’s loss of
support in tile House of Commons concentrates therefore upon a Prime Minister’s
duty to ask for liberty to resign or for a dissolution, rather than upon the
Sovereign’s right of removal, an exercise of which is not treated as being
within the scope of practical politics. In the state of affairs it is vain
to look to British Precedent for Prudence upon the circumstances in which
or the evidential material upon which a Prime Minister can be dismissed where
dismissal is an actual possibility‑, and the right of removal which is
explicitly recognised in the Nigerian Constitutions must be interpreted
according to the wording of its own limitations and not to limitations which
that wording does not import ... .... .... .... .... .... .... It recognises
also one other principle that has come to be accepted in the United Kingdom
that, subject to questions as to the right of dissolution and appeal to the electorate,
a Prime Minister ought not to remain in office as such once it has been
established that he has ceased to command the support of a majority of the
House. But, when that is said, the practical application of these principles to
a given situation, if it arose in the
United Kingdom, would depend less upon any simple statement of principle than
upon the actual facts of that situation and the good sense and political
sensitivity of the main actors called upon to take part.”
This
judgment of the Privy Council was undone by a retroactive amendment.
Resignations
submitted by the Ministers from the Cabinet fall in a category quite different
from those of the members of the National Assembly. If they were addressed to
the President and were presented directly to the President, and were given
effect to by the President, then it was indeed in full I D compliance with
requirements of Article 92(3) of the Constitution. There is an extensive
article on “Collective Ministerial Responsibility and Collective Solidarity” by
David L. Ellis, published in Public Law (1980) appearing at pages 367 to 390.
It comments on collective responsibility as hereunder:‑‑
“Lord
Salisbury in 1878 set out a formulation of the doctrine which has come to be
accepted as tile locus classicus:
‘For
all that passes in Cabinet every member of it who does not resign is absolutely
and irretrievably responsible and has no right afterwards to say that he agreed
in one case to a compromise, while in another he was persuaded by his colleagues
... ... .. .. It is only on the principle that absolute responsibility is
undertaken by every member of the Cabinet, who, after a decision is arrived at,
remains a member of it, that the joint responsibility of Ministers to
Parliament can be upheld and one of the most essential principles of
Parliamentary” responsibility established The following observations were made
with regard to the benefits of such a collective responsibility:‑‑
“It
might be argued that unanimity creates the impression had a Ministers are working together which
promotes greater electoral In party confidence, as well as enhancing the
Government image in the eyes of foreign politicians, investors and others.”
In
another article published in Public Law (1982) on choosing a Prime Minister by
Rodney Brazier, the following observations occur:‑‑
“No
Prime Minister has enjoyed his tenure of office without criticism from
his own parliamentary party from time to time; some have faced revolts within
their own party on particular issues; a few have, in effect, been forced from
office by their Own party.”
In
a book “Modern Foreign Governments” by Frederic A. Ogg, the Prime Minister’s
Heavy Load has been described as hereunder:‑‑
“The
Prime Minister’s Heavy Load.‑It
goes without saying that the Prime Minister is hard‑worked and always
pressed for time. He must scan multitude
of papers, carry on or supervise heavy correspondence,
receive persons seeking interviews on matters of public or private concern,
hold Cabinet meetings, confer with individual ministers, visit and submit
reports to the sovereign, and – as if that were not enough ‑‑ spend
much of almost every day when Parliament is in session either on the Treasury
Bench or in his private room behind the speaker’s chair, holding himself in
constant readiness o answer questions, to decide points of tactical procedure
put up to him by his lieutenants, and to plunge into debate in defence of some
Government proposal or policy. As leader of his party, too, he must’ devote
steady attention to its affairs. All in all, it is small wonder that the
shoulders of many a Prime Minister have drooped under the burden.”
How
this heavy burden is handled has been explained at page 90 in the following
words:
“For,
within Ministry and Cabinet alike, the Prime Minister is the key, man even if
not always the outstanding personality. He has put the other ministers where
they are. He exercises a general watchfulness and coordinating influence over
their activities. He presides at Cabinet meetings, and counsels as continuously
as time permits with individual members, encouraging, admonishing, advising,
and instructing. He irons out difficulties arising between ministers or
departments. If necessary, he can require of his colleagues that they accept
his ‑ views. with the alternative of his resignation or theirs, for it is
strategically essential that the Cabinet, however, divided in its opinions
behind closed doors, present a solid front to Parliament and the world. Indeed,
he can, and as we have seen occasionally does, request and secure from the
sovereign the removal of a minister for insubordination or indiscretion. He is
expected to be the leader of the ministerial group; as its chief spokesman, he
will have to bear the brunt of attacks made upon it; and it is logical that his
authority shall be disciplinary as well as merely moral. It goes without
saying, however, that in all this he must not be overbearing, or harsh, or unfair, or tactless. His Government will
at best have enough obstacles to overcome, its solidarity must not be
jeopardized or its morale impaired by grudges
or injured feelings within its ranks.”
In
another article published in Public Law (1986), on Prime Ministerial Power by
A. H. Brown, the following developments in the classic parliamentary democracy
have been noted:-
“
For Ramsay Muir the Prime Minister was a potentate who appoints and can dismiss
his colleagues. He is in fact, though not in law, the working head of the
State, ended with such a plenitude of power as no other constitutional ruler in
the world possesses, not even the President of the United States.’ But, in Muir’s
view, the Prime Minister holds this power ‘so long as he controls a majority in
the House of Commons’ and “it is necessary that he should carry his colleagues
in the Cabinet, or a large majority of them, alongwith him . ... .... ... ...
... ... ... ... ... ... ... .. One of the difficulties in discussing ‘prime
ministerial government’ is to know exactly what the notion entails, for it’
appears to mean different things to different people. It seems, however, to
include the following propositions. 1. A Prime Minister has the effective power
to give office only to those of whom he personally approves, and his ministers
have been ‘reduced to the rank of lieutenants that he can dismiss as he wishes’.
2. Control of the machinery of Government ensures the Prime Minister’s
preponderant influence over his colleagues. Through his ‘control’ of the
Cabinet Office and of Cabinet Committees he can manipulate the Cabinet collectively
and prevent ministers from putting items on the Cabinet agenda. 3. More
generally (and most basic to a meaningful definition of Prime Ministerial
Government), major policy decisions are taken or dominated by the Prime
Minister. He dominates Cabinet deliberations to such an extent that he can
rarely, if ever, be defeated in Cabinet. Formal meetings apart, he may also
intervene at will to dominate the policies of any department he chooses to take
an interest in. 4. These points constitute a great increase in the Prime
Minister’s power within the Government, and are developments that date from the
First World War (or, as some believe, from the Second).
They
are changes sufficiently important to warrant the use of new term, ‘prime
ministerial government’, to describe the British political system.”
In
the commentary on the Indian Constitution by Jain (1987 Edition), the question
of collective responsibility and consultation with the Ministers have been
discussed at pages 102 and 103 in the following words:‑‑
“A
Minister who disagrees with a Cabinet decision on a policy matter, and is not
prepared to support and defend it, should no longer remain in the Council of
Ministers and should better resign. There have been a number of resignations in
the past because of differences with the Cabinet. Dr. Mathai resigned as a
Finance Minister because he disagreed with the Cabinet on the question of scope
and powers of the Planning Commission which was proposed to be set up then.
C.D. Deshmukh resigned because he differed from the Cabinet on the issue of re‑organisation
of States, especially on the question of Bombay. On September 5, 1967, Foreign
Minister Chagla resigned because of his differences with the Government’s
language policy, especially the place of English. Several other Ministers have
resigned from the Cabinet.
The
principle of collective responsibility does not mean that every Minister must
take an active part in the formulation of policy, or he should be present in
the committee room whenever a policy decision is taken. This is not possible
because of the large size of the present day Council of Ministers. The
effective decision‑making body is the Cabinet and not the entire Council
of Ministers and, therefore, K the obligations of a Minister may be passive
rather than active when K the decision does not relate to matters falling
within his own sphere of responsibility. Collective responsibility ensures that
the Council of Ministers presents a united front to Parliament. In the words of
Laski, ‘Cabinet is by nature a unity: and collective responsibility is the
method by which this unity is secured’. The principle of collective
responsibility is both salutary and necessary. On no other condition can a
Council of Ministers work as a team and carry on the Government of the country.
It is the Prime Minister who enforces collective responsibility amongst the
Ministers through his ultimate power to dismiss a Minister.”
Resignations
from the Cabinet are not at all a sure indication of lack of confidence in the
Government nor do they affect or impair the smooth functioning of parliamentary democracy. In a
book “Cabinet Government in L India” by R.J. Venkateswaran, the following
observations lions have been made with regard to resignations by the Ministers
in Chapter VI under the heading “Remarkable Resignations”:‑‑‑
“Ministerial
resignations are a normal feature in a Parliamentary democracy. Ministers may
leave the Cabinet for many reasons – ill health, old age, or for taking up
diplomatic or other assignments. They may also retire voluntarily owing to
serious differences in policy, or may be compelled to go by pressure of adverse
public opinion, or asked by the Prime Minister to quit for incompetence or for
any other reason. In India there were many resignations from the Cabinet during
the seventeen years of Nehru’s regime, but here we are concerned only with
those cases that involved important political and constitutional implications.”
The
resignations of the Ministers should not have found place at all in the
dissolution order, nor could they have been taken in the consider formed ground
for taking action under Article 58(2)(b) of the Constitution. They are wholly
irrelevant.
The
first ground of the dissolution order was sought to be finally on the basis of
a residual implied power of the President ordinarily IN conventionally
available to the Crown in parliamentary democracy. In view of the express
provisions of our written Constitution detailing in fullness both the procedure
and power recourse to any residual power cannot be had. This is the rule of
interpretation already discussed while examining the Nigerian case. Besides,
the Crown has four conventional protect ions in the Parliamentary system which
in our written Constitution the President does not enjoy.
Firstly,
on a purely theoretical plane, it is
indeed the plenary power of the Crown to dissolve the Parliament at his will.
Secondly. the Crown is not controlled by any jurisdictional requirements in the
matter of taking such a decision, Thirdly, Crown is irremovable. Fourthly,
the Crown can do no wrong. All these four features are totally lacking in our
Constitution. Besides, as pointed out by Mr. S. M. Zafar in an altogether
different context, if the express provisions provide otherwise, the residual
power derivable therefrom cannot on any principle of interpretation overreach
them just as the stream cannot rise above its source. The first ground was,
therefore, wholly misconceived, not available and cannot stand the test of our
Constitutional requirements. The making of such a ground, the adoption of it,
the giving recognition and effect to it, are all fraught with serious threat to
our political morality, to our body politics and to our Constitution.
The
second ground gets vitiated for the simple reason that in a formal
Constitutional instrument made out in exercise of powers under Article 58(2)(b)
of the Constitution, the President has, whatever be the tenor of the speech and
its contents, come to the conclusion and conveyed to the world that in any case
the speech and the conduct of ‑the Prime Minister amount to subversion of
the Constitution. Subversion in our law is High Treason which is regarded as
the highest crime known to law and the
most serious offence that may be committed against one’s own country. The
President had no authority under the Constitution to pronounce such a finding
and to make a declaration against a citizen of Pakistan, a leader of the
majority Parliamentary party, the Prime Minister of the country, for sustaining
such an order. It is clearly violative of first part of Fundamental Right 14.
We
have examined the contents of the speech of the Prime Minister both with regard
to its form and substance and also whether or not it provided justification for
the dissolution order. The President in his speech made it clear that he took
no exception to Prime Minister criticizing him as a person. If that be so we
too will not go into that aspect of the case. As regards the office of the
President, the Constitutional validity of. the criticism will have to be
examined. We have dealt with all the areas of conflict, the nature of conflict
and the Constitutional provisions governing such conflicts and have found that there was substantial basis
for such criticism. In a Constitutional set‑up restraint in language,
exhibition of dignity and decorum from both sides should have been of a much
higher. level. This should have been particularly so in this case because the
two functionaries had cooperated for sufficiently long time, had praised each
other publicly too often and had never brought their legal and Constitutional
differences before appropriate forums. Such criticism by itself does not lead
to the inference that the Constitution cannot work. It is the conduct of the
office‑holders and not the content of the Constitution which is proving,
if at all, an impediment in smooth functioning of the Constitutional
Government. The answer lies not in ouster out of the one by the other but in
abiding by the Constitution and Constitution alone. The oaths of the two
functionaries are identical, word for word and letter for letter. It is only
the difference in offices which lends a different scope to each one of them.
Therefore, the test for exercise of power is not the oath but the exact
Constitutional provision under which the power is exercised. The first duty
cast by oath of office is to identify one’s own jurisdiction and power and next
to faithfully remain within the confines of it. The second ground too was not available to the President for the exercise
of power under Article 58(2)(b) of the Constitution.
The
third ground of dissolution concerns the improper functioning of various
Constitutional bodies provided for securing integration, cohesion and
understanding between the Provinces. Articles 153 and 154 of the Constitution
make provision for the establishment and functioning of the Council of Common
Interests. The Council is required to formulate and regulate policies in
relation to matters in Part 11 of the Federal Legislative List and in the matter
of electricity in the Concurrent Legislative List. If any one of the
Governments is dissatisfied with a decision of the Council, it can refer the
matter to Parliament in a joint sitting whose decision in this behalf shall be
final. The letters of the two Chief Ministers produced to show non‑compliance
with the provisions do not demand the summoning of the Council of Common
Interests for resolution of dispute nor do they call upon the Prime Minister or
the President to refer the matter to t ‘ he Parliament in the joint sitting.
They certainly. make a grievance of not receiving due representation in the
privatisation proposals with regard to WAPDA, Electricity etc. None of the
grievances relates to any industry which has been privatized. They all relate
to matters which are still under consideration of the appropriate authority and
only preliminary examination is being undertaken. Even if omissions have taken
place while the matter is under active consideration, the scope for appropriate
rectification, consensus and resolution is still there. It is normal feature of
the functioning of the Government that a preliminary .exercise is undertaken by
experts before a matter is taken up for final decision to the Constitutional
body established for the purpose. Wherever rectifications are possible and the
action is not yet finalized, the more appropriate course is to proceed about it
constitutionally, to associate in the on‑going exercise and assist in
final decision making. It is not the grievance made which is decisive of the
constitutionality of the action but the final decision yet to follow.
During
the course of the hearing certain other matters not made the basis and not the
subject‑matter of the impugned order before us about which in grievance
was made by any of the Provinces have been put in to condemn the governance of
the country. This relates to disposal of surplus land by the Railways, the
leasing out of the ticketing on the Railways and the disposal of certain
nationalized and State industries. These actions were taken by the Government
and did not directly concern the Council of Common Interests nor did any
Provincial Government ever make a grievance of it.
The
privatization of nationalized units had the requisite statutory cover under the
following statutes none of which had been objected to by the President or sent
for reconsideration by the Cabinet‑.‑‑
(1) President’s Order 12
of 1978 ‑‑ Transfer of Managed Establishments Order, 1978.
(2) Ordinance X1 of 1989
__ Transfer of Managed Establishments (Amendment)
Ordinance, 1989.
(3)Ordinance
XXXIII of 1991 ‑‑ Transfer of Managed Establishments (2nd
Amendment) Ordinance, 1991.
(4)Act
V of 1992 ‑ Transfer of Managed Establishments (Amendment) Act, 1992.
(5) Act LXV of 1.973
Hydrogenated Vegetable Oil Industry (Control and
Development) Act, 1973.
(6) Ordinance XXXV of 1991 ‑‑
Hydrogenated Vegetable Industry (Control
and Development) (Amendment) Ordinance, 1991.
(7) Act XX of 1992 ‑‑
Hydrogenated V edible Oil Industry (Control and Development) (Amendment) Act, 19
(8) Ordinance VII of 1992
‑‑ Hydrogenated Vegetable Oil Industry (Control and Development) (Amendment) Ordinance, 1992.
(9) Act XI of 1992 ‑‑
Hydrogenated Vegetable Oil Industry (Control and Development) (2nd Amendment) Act, 1992.
(10)
Act XII of 1992 ‑‑ Protection of Economic Reforms Act, 1992.
One
of the ways of smooth integration of the country is when the same political
party is in power at the Federal level as well as in the Provinces. It is
happened to be so in the case of the petitioner. Therefore, unless there be
specific and serious constitutional objection raised by the Provinces, the
conduct of policy in these matters should have been better left to the Prime!, Minister himself.
The
word “transparency” in administration or privatization is a word very pleasing
to the ear and very impressive to rind established in a society. Where freedom
to obtain information does not exist, where secrecy of all financial
transactions including the declaration of assets by the public office holders is the order of the ,day to expect
transparency and make it a ground for taking action under Article 58(2)(~) of
the Constitution would be far‑fetched, a’ matter of degree and quite
unjustified. It is a vague criteria, not referable to any statutory provision
and will make the satisfaction of the empowered authority subjective and not
objective. This Court has already held that the requirements of Article
58(2)(b) of the Constitution arc all objective and relatable to the various
Constitutional provisions.
The
allegations of corruption, of maladministration, of incorrect policies being
pursued in matters financial, administrative and international are
independently neither decisive nor within the domain of President for action
under Article 58(2)(b) of the Constitution. These are wholly extraneous and
cannot sustain the impugned order.
The
impugned order has too many subjective elements not recognized by the
Constitution for exercise of Presidential power of dissolution of National
Assembly. For example, the anticipatory action that the Government of the
Federation is not in a position to meet properly and positively the threat to
the I security and integrity of Pakistan and the grave economic situation
confronting the country are no considerations, nor can the President make an
assessment of it independent of the Federal Government headed by the Prime
Minister, as the Parliament is established for that purpose.
We
rind that none of the grounds made the basis of the impugned action has been
established that they bear no nexus to the order passed and grounds totally
extraneous and irrelevant and in clear departure of the Constitutional
provisions have been invoked for taking action.
The
question that was proposed to the learned Attorney‑General by me was ‑whether
tile President could constitutionally dismiss the Prime Minister and his
cabinet while exercising his powers under Article 58(2)(b). He has relied on
the use of expression “The Prime Minister shall hold office during the pleasure
of the President” in Article 91(5) of the Constitution read with the practice
in India and United Kingdom to justify such use. What he failed to notice is
that this pleasure of the Crown in United Kingdom and of the President in India
is unqualified. Ours is qualified in two ways. First the very Article in which
pleasure of the President is provided the stri6t modalities of the exercise of
it have been expressly provided as hereunder:‑‑
“91(5)
The Prime Minister shall hold office during the pleasure of the President, but
the President shall not exercise his powers under this clause unless he is
satisfied that the Prime Minister does not command the confidence of the
majority of the members of the National Assembly, in which case he shall summon
the National Assembly and require the Prime Minister to obtain a vote of
confidence from the Assembly.”
The
second difference is that unlike any other Constitution of the world ours
expressly provides for the inviolability of the dignity of man as a Fundamental
Right available to all citizens of Pakistan. For an order under Article
58(2)(b) of the Constitution the only power available is of dissolution of
National Assembly. The question arises why add to it something unnecessary,
Something hurtful, something that would look out of place and uncalled for in
retrospect, create an impression of master and servant. I would not at this
stage and in these proceedings go to the extent of holding that use of these
expressions itself amounts to violation of Fundamental Right 14. All that I can
say is it would have been constitutionally more graceful to avoid their use.
The
question as to who, the President or the Prime Minister, is the final authority
to appoint Chief of the Army Staff, does not directly arise out of the grounds
of Dissolution Order. However, the pivotal role that this question played in
souring the Constitutional relationship of the two is apparent from the
following statement of fact by President in his speech:‑‑
The
reply of the Prime Minister to this in his rejoinder to the written statement
was as hereunder:‑‑
“It
is denied that there was any disagreement
between the President and the petitioner on the appointment of the COAS.”
Believing
the statement of both to be correct the only conclusion permissible is that
they had no difference of opinion over the person to be appointed. Their
differences, if any, on this subject remained confined to the power to make
that appointment. Not surprising that such a conflict should arise on President’s
perception of the power, as one in his discretionary field.
Article
243 of the Constitution before suffering any of the amendments read as
hereunder:‑‑
“243.‑‑(l)
The Federal Government shall have control
and command of the Armed Forces.
(2) The President shall subject to law,
have power‑‑
(a) to raise and maintain
the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces;
(b) to grant Commissions in such Forces;
and
(c) to appoint the Chief of the Army
Staff, the Chief of the Naval Staff and the Chief of the Air Staff, and
determine their salaries and allowances.”
In
the President’s Order 14 of 1985 (Revival of the Constitution of 1973 Order,
1985), enforced on 2‑3‑1985, it was provided that the Constitution
of the Islamic Republic of Pakistan, 1973, is hereby amended to the extent and
in the manner specified in the third column of the Schedule. Article 4 of this
President’s Order 14 of 1985, provided that the provisions of the Constitution,
as amended by this Order, shall stand revived on such day as President may, by
Notification in the Official Gazette, appoint and different days may be so
appointed in respect of different provisions. The entry No.50 in the Schedule
in respect of Article 243 reads as hereunder:‑‑
1. After clause (1), the following new
clause shall be inserted, namely:‑‑
(1‑A) Without prejudice to the generality of the
foregoing provision, the Supreme Command
of the Armed Forces shall vest in the President.
2.
In’ clause (3), in paragraph (c), after the word “appoint”, the words and
commas “in his discretion the Chairman, Joint Chiefs of Staff Committee,” shall
be inserted.”
On
30‑12‑1985, the proclamation of withdrawal of Martial‑Law
took over and the Constitution as amended by the Revival of the Constitution
Order, 1985, and further amended by 8th Amendment (not this Article) was
thereafter enforced.
It is clear that prior to the
amendment of Article 243 the appointment of all the Chiefs of the Army, Air
Force and the Navy had to take place on the advice of the Prime Minister. The
content of the amendment introduced by the Revival of the Constitution Order
was confined to one new post that was created, that was of the Chairman, Joint
Chiefs of Staff Committee and in respect of that newly‑created post the
appointing authority was made the President and in making that appointment he
was to act in his discretion. Throughout the world interpreting and
understanding the Constitution and legislative instruments the punctuations are
not allowed to play any decisive role. Even if they do here the authorisation
or empowering by the Parliament and the provisions of the Revival of the
Constitution Order being confined to the post of Joint Chiefs of Staff
Committee it could not on any interpretation be extended to the other Chiefs.
Mr. Yahya Bakhtiar, in making a submission on
the point indicated that this view is consistent with the scheme (if the
Constitution as modified by the Revival of the Constitution Order, 1.985. The
power to appoint the Chief Election Commissioner, the Chairman of the Federal
Public ‑Service Commission and the Chairman of the Joint Chiefs of Staff Committee reserved for being exercised in
the discretion by the President. So far
as the others constituting these bodies are concerned, namely, the Members
of the Election Commission, the Members ‘ of the Public Service Commission and the Chiefs‑of the Army Staff,
Navy and Air Force are ‘ concerned, they
were left unaffected so far as the appointment to them on the advice of the
Prime Minister was concerned. While examining this question another quite startling fact came to our notice
and it was Schedule VI referable to Rule 15‑A (2) of the Ruler, of
Business framed by. the Federal Government under Articles 90 and 99 of the
Constitution. Schedule VI under Rule 15aA(2) has three portions as hereunder:‑‑
SCHEDULE V1
Rule 15‑A(2)
List
of cases to be submitted to
the
President for his orders in his
discretion.
S.
No. Reference
to
Constitutional provisions
CABINET DIVISION
1. xxxxx
xxxxxxx
xxxxxx
2. Appointment of
acting Governor during the Article
101
absence of Governor.
3. Appointment of the Provincial
Article 105
Chief Ministers
1(a)&(4)
DEFENCE
DIVISION
4. 1 Appointment of Chairman,
Joint Chiefs of Staff Amended Committee, Chiefs of Army Staff, Naval Staff and
provisions of Air Staff and determination of their salaries Article 243 Article
243 and allowances.
xxxx xxxxxxx xxxxxx
xxxxxx It Schedule VI contains three
entries which appear to be against –the Constitutional provisions reproduced
above.
It is not Article 101 but
Article 104 which deals with the appointment of Acting Governor and is in the
following words:
“104. Acting, Governor.‑‑‑When
the Governor is absent from Pakistan or is unable to perform the functions of
his office due to any cause, such other person as the President may direct
shall act as Governor.” This provision has not suffered any amendment since
1973 Constitution was framed.
Mr.
S. M. Zafar in his analysis of the provisions has included this power as one to
be exercised by the President on the advice of the Prime Minister. This appears
to be correct view also. As regards entry No.3 of the Cabinet Division, Article
105(l) has no longer a sub‑clause (1). In the Revival of the Constitution
Order, indeed there was a sub‑clause (a) relating to the appointment of
the Chief Ministers which was deleted or not approved when the 8th Amendment
was passed.
In
respect of the Defence Division a wrong entry with regard to the appointment of
the Chiefs, other than the Chairman, Joint Chiefs of Staff Committee was
included as within the discretionary field of powers of the President. Such an
incorrect unconstitutional Rules of Business for the functioning of the Federal
Secretariat continued over such a long period reflects the apathy, the
inattention and unawareness of the Constitutional mandates. Such mistakes are
liable to breed avoidable controversies resulting in grave consequences as we
have witnessed in the present case. The Attorney General has only said that
these issues are not involved in the present case and should not be decided. In
any society seriously striving to establish rule of law and to protect its
Constitution from invasion, a duty to educate, a duty to inform, and a duty to
exhibit at all times awareness of the Constitutional parameters is necessarily
cast on all functionaries of the State. No occasion should be lost to
understand them, to expound them, to clear the cobwebs of misunderstanding and
likely areas of conflict and confusion with regard to them.
The
learned Attorney‑General, instead of attending to the question No. (iv),
mentioned at page 55 of the judgment, with regard to discretion of the Court in
the matter of grant of relief cx debito justitiae attended to the discretion of
the Court in entertaining a petition complaining breach of Fundamental Right.
He cited M/s. Tilokchand Motichand and others v. H.B. Munshi, Commissioner of
Sales Tax, Bombay and ‑another (AIR 1970 SC 898 at page 908, paragraph
36), Raj Kumar v. Union of India and others (AIR 1975 SC 530 at page 540,
paragraph 16) and commentaries on the Constitution of India by Scervai and
Kagzi establishing that acquiescence, estoppel, laches, inordinate delay etc.
can and do stand in the way of entertainment of petition seeking enforcement of
Fundamental Rights. The question did not concern itself with the threshold bar,
as none was pleaded, raised or arose in this case. The question related to
ultimate grant of relief, limitation if any, on it.
According
to Mr. S. M. War, Senior Advocate, Political Justice has been expressed and
ensured by the Constitution in two separate and distinct forms. The first of
these forms is through the various Fundamental Rights. The second form is
through the other provisions of the Constitution. According to him Political
Justice is expressed and ensured through Fundamental Rights by‑‑
Article
9 Security
of person
Article
10 Safeguards
as to arrest and detention
Article
12 Protection
against retrospective punishment.
Article
13 Protection
against double punishment and self-incrimination.
Article
14 Inviolability
of dignity of man, etc.
Article
15 freedom of
movement etc
Article
16 freedom of
assembly
Article
17 freedom of
association
Article
19 freedom of
speech
Article
25 equality of
citizens
Social
Justice by‑‑
Article
9 ------------- Security of person
Article
11 ---------------- Slavery, forced labour, etc., prohibited.
Article
1.3--------------- Protection against double punishment and self-incrimination.
Article
14(l)------------ Inviolability of dignity of man, etc.
Article
26 -------------- Non‑discrimination in respect of access to public
places.
Article
27 -------------- Safeguard against discrimination in services.
Article
28 -------------- Preservation of language, script and culture.
Economic
Justice by‑
Article
18 ------------ Freedom of trade, business or profession.
Article
21------------- Safeguard against taxation for purposes of any particular
religion.
Article
23 ------------ Provision as to property.
Article
24 ------------ Protection of property rights.
and
unclassified Justice by‑‑
Article
20 Freedom to profess religion
and to manage
religious institutions.
Article
21 Safeguard against taxation
for purposes of any
particular
religion.
Article
22 Safeguard as to educational
institutions in respect of religion, etc.
The
second category is of the other provisions of the Constitution which ensure
majoritarian rule. This is ensured by‑‑
Article
50 --------------- Majlis‑e‑Shoora
(Parliament)
Article
51 -------------- National
Assembly
Article
52 -------------- Duration of
National Assembly
Article
91 The Cabinet.
The
later content of Political Justice that is majoritarian rule, was, according to Mr. S. M. Zafar
violated thrice in this country. Once, when a majority Province was kept at par
with the rest of the three provinces which formed a minority. Next, when one
province was kept at par with three other Provinces. The third occasion arose
when in the matter of No‑Confidence Motion against Prime Minister in the
National Assembly proviso to clause (5) of Article 96 of 1973 Constitution as
originally framed had the following content:‑‑
“Provided,
that for a period of ten years from the commencing day or the holding of the
second general election to the National Assembly whichever occurs later, the
vote of a member elected to the National Assembly as a candidate ‑or
nominee of a political party, cast ‘ in support of a resolution for a vote of
no‑confidence shall be disregarded if the majority of the members of that
political party in the National Assembly has cast its votes against the passing
of such resolution.”
Mr.
S. M. Zafar contends that clause . (2) of Article 17 is restrictive, an
exception to clause (1), is negative in content, denying to civil servant right
to joint Political Party and controlling under judicial cover. unhealthy
political activity. This clause (2) cannot, therefore, go beyond clause (1) on
the analogy that the stream cannot rise above its source.
By
examining each provision of the Constitution Mr. S. M. Zafar was in a position
to state that he following Articles of the Constitution keep intact the
Parliamentary form of Government in Pakistan:‑‑
Article
41 -------------- The President
Article
46 -------------- Duties of Prime Minister in relation to President,
Article
48 -------------- President to act on advice, etc.
Article
91 -------------- The Cabinet.
Article
99 -------------- Conduct of business of Federal Government.
The
learned counsel also pointed out that there are provisions in the Constitution,
very peculiar to our Constitution, and these are discretionary powers of the
President under‑‑
Article
48(2) ----------- When the discretion relates to dissolution of the National
Assembly under Article
58(2) read with Article 48(5).
Article
46(6) ----------- Referendum
Article
213 ------------- Appointment of Chief Election Commissioner.
Article
242(1‑A) ------ Appointment of Chairman, Joint Chiefs of Staff Committee.
Another “category of powers of
the President which can be called extraordinary powers are contained in‑‑
Article
177 -------------- Appointment of Chief Justice and Judges of Supreme Court in
consultation.
Article
193 -------------- Appointment of High Court Judges in consultation.
Article
101 -------------- Appointment of Governors in consultation.
Article
218 -------------- Appointment of Members of Election Commission .in
consultation.
The
object of such a detailed, and lucid analysis of the provisions of the
Constitution was to demonstrate and establish the following, facts:-
(i) The President’s high office enjoyed
independently of everyone else certain very important functions of the State
for which purpose he had to remain Vigilant, concerned and alive to the
issues..
(ii) President
had also another duty to perform, namely of guiding, controlling and counseling
the executive Government with regard to its policies and performance.
(iii) The
President in yet another domain was required to act on the advice of the Prime Minister irrespective of his
own notions and views.
(iv) All
these responsibilities coupled with the
amalgam of our Constitution and accepted
conventions of the Parliamentary
democracy authorized him to act on the resignations which were meant to be
resignations and on other material which has been made (lie grounds of
dissolution.
(v) A
petition is not directly competent under Article 184(3) howsoever extended a
meaning be given to Fundamental Right 17 and to concept of political justice.
So far as the first three conclusions
arc concerned it is indeed so but these are mere aids to identification of
powers and jurisdictions and for confining the actions within those identified
limit. They cannot in a written Constitution be utilized for establishing the
ascendency of one over the other for all purposes nor for claiming a residual
power overreaching the source itself. So far as the fourth conclusion is
concerned, the over elaborate discussion of the Nigerian case establishes the
points that do not go outside the written Constitution for claiming more powers
for anyone of the established authorities.
Now coming to the competence of the
petition, the grounds of objections have already been noted. During the hearing
of the arguments ‑I used an unusual expression “flowering of the
Fundamental Rights in other provisions of the Constitution”. Learned Advocate‑General
Punjab noted it and elicited the meaning and scope of it. In explaining this I
hope to meet all the other objections taken to the competence of the petition.
‘Political”
has been defined in Black’s Law Dictionary as “pertaining or clothing to the
Policy or the administration of Government, State or National; pertaining to,
or incidental to, the exercise of the functions vested in those charged with
the conduct of Government; relating to
management of the affairs of the State.” In the same dictionary ‘Political
rights” have been defined as “those which may be exercised in the formation or
administration of the Government, Rights of citizens established or recognized
by Constitutions whic1i give them the power to participate directly or
indirectly in the establishment or administration of Government.”
The
expression “flowering of an idea, artistic style, or political movement is its
successful development” (BBC English Dictionary, page 44‑2).
In Miss Benazir Bhutto v. Federation of
Pakistan and another PLD 1988 SC 416 at page 544, the following question and
answer is recorded:‑
Question
“What is the remedy if a fully
entrenched political party itself in power through Government constituted by it, has to
account for what is provided in Article 17(2) relating to its accountability?”
Answer
“Theoretically the Government
could make reference against its own party but practically it might never
happen. For such eventuality it might be possible for the Supreme Court to act suo motu, if it holds so.”
The provisions of the Constitution which
enable Political parties to reach the Government and after reaching the
Government to continue their political purpose unimpeded are all directed
towards ensuring fruition of this Fundamental Right.
It is difficult to agree with the
contention that clause (2) of Article 17 of the Constitution has a restricted
field. If the Constitution‑makers chose to treat it separately,
compendiously and expressly, unlike any other known Constitution of the world,
why should we restrict and limit it. For an extensive interpretation of it there
is a positive indicator in the word “operating”. There is healthy operating,
there is unhealthy operating. By taking care of unhealthy operating, healthy
operation has been kept free of all limitations to flourish and flower inside
the Government as well as outside it.
I I hold that petition is Competent not only
because Fundamental Right 17 is directly involved but also because the first
part of Article 14 of the Constitution stands violated by attributing
subversion to the ousted Prime Minister. Further, the two documents described
at page 45 of this judgment ‑item 15(i) and (ii) reveal that the Prime
Minister was being prevented by the President from extending the Political
activity of the Executive Government of the Federation to the Federally Administered
Tribal Areas. This too amounted to violation of Fundamental Right 17(2).
This
petition is allowed. The impugned order is declared to ‘ be without lawful
authority and of no legal effect. As a consequence, the National Assembly,
Prime Minister and the Cabinet shall stand restored and entitled to function as
immediately before the impugned order was passed. All stops taken pursuant to
the order, dated 18th April, 1W3 passed under Article 58(2)(b) of V the
Constitution such as the appointment of the Care‑taker Cabinet etc. will,
V therefore, be of no legal effect. However, all orders passed, acts done and
measures taken in the meanwhile by the Care‑taker Government, which have
been done, taken and given effect to in accordance with the terms of the Constitution
and were required to be done or ‘taken for the ordinary orderly running of the
State shall all be deemed to have been validly and legally done.
SAAD SAOOD JAN, J.‑‑‑l
have had the privilege of reading the
opinions of the learned Chief Justice and some of my learned brothers. In view
of the importance of the controversy before the Court and the fact that I was
unable to share the conclusion of my learned brothers on the question of the
maintainability of this petition I am recording my opinion separately.
.
1‑A. This is a petition under Article 184(3) of ‑the Constitution,
inter alia, calling in’ question the legality of the order, dated 18‑4‑1993
of the President of Pakistan whereby in exercise of his discretionary power
under Article 58(2)(b) of the Constitution he dissolved the National Assembly
and dismissed the Federal Cabinet of which the petitioner was the head as Prime
Minister.
‑2. The petitioner was the
Leader of the Islami Jamhoori Ittehad, an alliance of a number of political parties,
In the General Election to the National ‑Assembly held in October 1990
the alliance was able to secure an, absolute majority. Accordingly, he formed
the Government with ‘ himself as the Prime Minister. Under Article 52 of the
Constitution the National Assembly was to enjoy a term of five years from the
date of its first meeting. However, by t he order, dated 18‑4‑lV)3,
the President dissolved the National Assembly,
dismissed
him and his Cabinet and instead appointed a Care‑taker Cabinet
headed
by respondent No.3.
.3.
To challcng1c the legality of the order of the President, hereinafter called
the Dissolution Order, a number of Constitution petitions were filed in the
Lahore High Court and perhaps in some other High Courts also. One of the
petitioners before the Lahore High Court was the Speaker of the National
Assembly. However that may be, the petitioner and a number of other persons
including Chaudhry Shujaat Hussain (Minister for Interior in the petitioner’s
Cabinet) chose to rile petitions for the same reliefs directly in this Court
under Article 184(3) of the Constitution. Except in the case of the petition
filed by the petitioner no written statements * were asked for from the
respondents and Mr. Farooq Hassan who appeared on behalf of Chaudhry Shujaat
Hussain was advised to confine his address to the legal questions arising in
his petition. However, so far as the petitioner’s petition was concerned the
respondents were called upon not only to rile written statements but also
indicate the mat6rialwhich had persuaded the President to make the Dissolution
Order.
4.
The learned Attorney‑General opposed the petition both on legal and
factual grounds. To begin with, he argued that a petition calling in question
the legality of the Dissolution Order could not be entertained by this Court as
it did not fall within the restricted jurisdiction vested in this Court under
Article 18A(3), ibid. On merits his contention was that all the grounds stated
in the Dissolution Order were well‑founded and these had a direct nexus
with exercise of the power under Article, 58(2)(b), ibid.
5.
The petition came up before the Court for preliminary hearing on 26‑4‑1993.
After hearing counsel for the parties it was decided that the objection with
regard to the maintainability of the petition and the issues arising on merits
should be joined and that these should be heard and decided together.
6.
To examine the objection taken up by the learned Attorney‑General with
regard to the competency of this Court to entertain this petition two
provisions of the Constitution may immediately be noticed. The first is
contained in Article 175(2): it states that no Court shall have any
jurisdiction save as is or may be conferred on it by the Constitution or by or
under any law. The expression ‘jurisdiction’ has been defined to be the power
of the Court to hear and determine a cause and exercise judicial power in
relation to it. (See Chief Secretary v. Sikandar Hayat Khan PLD 1982 SC
(AJ&K) 112). Apart from Article 184 of the Constitution there is no other
law which confers original jurisdiction on this Court in any matter requiring
judicial determination of the rights of the parties. As regards Article 184, it
contains two separate provisions. These are to be found in clauses (1) and (3)
of the Article. Clause (1) relates to disputes between and among various
governments of the Federation and it is therefore not relevant so far as this
petition is concerned. Clause (3) reads as follows:
“Without
prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the
enforcement of any. of the Fundamental Rights conferred by Chapter 1 of Part 11
is involved, have the power to make an order of the nature mentioned in the
said Article.”
According
to the petitioner his case falls under clause (3) ibid, as he is seeking
enforcement of his Fundamental Right as incorporated in clause (2) of Article
17. It need hardly be added that Article 17 ibid falls in Chapter 1 of Part 11
of the Constitution. Thus, if the petitioner can show that his petition is in
substance one with reference to the enforcement of the Fundamental Right
enshrined in clause (2) of Article 17 the objection of the learned Attorney General
with regard to the competency of this petition will have to be repelled.
7.‑
It is contended by Mr. Farooq Hassan that the addition of the expression ‘with
reference to’ before the words ‘the enforcement or in clause (3) of Article 184
is of great significance as it has the effect of enlarging the jurisdiction of
the Court, for, with this addition the clause now not only encompasses matters
which relate to the enforcement of the Fundamental Rights directly but embraces
within its ambit such cases as well which have reference to the enforcement of
these Rights. In this context, he also referred
to the case of Griswold v. Connecticut 381 US 479 wherein the scope of
the right of freedom of association was held to extend to those matters also
which fell within its penumbra. It was observed in this case:
“We
protected the ‘freedom to associate and privacy is one’s association,’ noting
that freedom of association was a peripheral First Amendment right. Disclosure
of membership lists of a Constitutionally valid association, we held, was
invalid ‘as entailing the likelihood of a substantial restraint upon the
exercise by petitioner’s members of their right to freedom of association! In other words, the First Amendment has
a penumbra where privacy is protected from Governmental intrusion...”
He
has also contended that the Fundamental Rights are open ended’ and that there
can never be any limit on the field in which they operate. Although, I am not
prepared to accept this proposition without some reservation, but so far the
original jurisdiction of this Court is concerned the position, to my mind is
clear, that is, to invoke the jurisdiction of this Court under clause (3) of
Article 184 it must be shown that the action complained against violates a
Fundamental Right as set out in Chapter 1 of Part If either directly or
transgresses the field in which the
said right can reasonably be taken to be operative.
8.
The case of the petitioner is that the Dissolution Order violates his
Fundamental Right as enshrined in Article 17(2), ibid. It reads as follows:
“Every
citizen, not being in the service of Pakistan, shall have the right to form or
be a member of a political party, subject to any reasonable restrictions
imposed by law in the interest of sovereignty or integrity of Pakistan and such
law shall provide that where the Federal Government declares that any political
party has been formed or is operating in a manner prejudicial to the
sovereignty or integrity of Pakistan, the Federal Government shall, within
fifteen days of such declaration, refer the matter to the Supreme Court whose
decision on such reference shall be final.”
Having
been actively associated with the preparation of the draft of 1973
Constitution, as originally enacted in April 1973, it seems appropriate that I
may say a few words about the background of this provision. It was a new
addition to the list of Fundamental Rights inasmuch as it did not occur in the
Constitutions of 1956 and 1962. The Constitution Committee of the National
Assembly which was entrusted with the task of preparing the draft was of the
opinion that the right of freedom of association as guaranteed in the earlier
Constitutions of 1956 *and 1962, qualified as it was with a number of
restrictions, did not give sufficient protection to the political parties
against the Executive which in the, past had no hesitation in limiting or
stifling their ordinary activities, particularly if these were directed against
the party in the Government. It was felt that for the democracy to flourish in
the country, it was essential that the political parties should be entirely,
unfettered except when they worked against the sovereignty and integrity of
Pakistan. The experience of 1962 Constitution was before the Committee for
despite the fact that it guaranteed freedom of association severest possible
checks were placed on the otherwise legitimate functions of political parties.
Some of the parties were election could hold himself inter alia, that he was a member of a
particular party. This was tantamount to denying to the political parties a
place in the political processes in the country. In order to free the political
parties from the strangle‑hold of the Executive and permit the citizens
freedom of thought and action in political matters it was decided by the
Constitution Committee to make a separate and independent provision so far as
the political parties were concerned.
9.
A perusal of Article 17(2) will show that the Fundamental Right contained
therein has a somewhat limited scope inasmuch as it relates to the formation
and membership of political parties. Thus, it no doubt gives freedom to the
citizens to form political parties, enjoy the membership of the parties of
their choice and by extension of the said right to take part in all political
activities; but then this Article was never intended to be a complete charter
of all political rights. The content of the right which it guarantees is
clearly delineated by the terms in which it is expressed and I am not sure even
if by the rule of progressive interpretation its scope can be extended to
guaranteeing the right to the membership of legislative bodies or to the
formation of the Government of the day.
.
10. On two earlier occasions this Court had the opportunity to examine the
effect of Article 17(2) on certain existing laws. The judgments in both cases
bear the same title, namely, Benazir Bhutto v. Federation of Pakistan. These
are to be found in PLD 1988 SC 416 and PLD 1989 SC 66. In the first case the
Court declared certain provisions of the Political Parties Act to‑be void
as they clogged the proper and effective functioning of political parties. In
the other case, the Court struck down section 21, Representation of the People
Act, 1976, on account of its being violative of Article 17(2) to the extent it
failed to recognize the existence and paticipation of the political parties in
an election through allocation of common symbols for their candidates. In both
these cases certain observations were made with regard to the role of political
parties in a democracy, particularly of parliamentary type, but these
observations have to be construed in the context of the controversies which
arose in these cases; in one case the Court was considering the stifling effect
of some of the provisions of the political Parties Act on the formation and
functioning of political parties and in the second one it was faced with a
situation where the members of political parties were being prevented from,,
contesting election under a common colour.
11.
But in the petition before us, the petitioner does not allege that he has been
prevented from forming or being a member of a political party or that the
political party of which he is the leader has in any manner been obstructed
from carrying on its legitimate political activities or operations; on the
other hand, what he says in substance is that the National Assembly where his
party enjoys an absolute majority has been illegally dissolved. Now, Article
17(2) is not a check against all violations of the Constitution; as already
stated, the terms in which it is expressed set out the content of the right
guaranteed by it; it relates to the formation, membership and legitimate
functioning of the political parties. It does not concern itself with the
rights of the citizens when they sit as members of a legislative body. The term
of the National Assembly, its constitution and the manner of its dissolution
are regulated by other Articles of the Constitution; Article 17(2) has nothing
to do with these matters. If the National Assembly is dissolved illegally it
will be a violation of Articles 52 and 58. 1 do not see how anyone can complain
that by the dissolution of the Assembly his right under Article 17(2) has been
impinged upon. He will no doubt have a remedy under Article ‘ 199 of the
Constitution before the High Court; the jurisdiction conferred on this Court by
Article 184(3) is by the language in which it is, couched for too restricted to
cover his petition.
13.
Learned counsel for the petitioner drew
our attention to one of the clauses of the Objectives Resolution which,
with the insertion of Article 2A in the Constitution, is now a substantive part
thereof. The said clause reads as follows:
“Wherein
shall be guaranteed Fundamental Rights including equality of status, of
opportunity and before law, social, economic and political justice, and freedom
of thought, expression, belief, faith, worship and association, subject to law
and public morality.”
The
learned Counsel placed stress on the expression ‘political justice’ and went on
to argue that the petitioner was seeking political justice from this Court when
he directly filed the petition here. In this context, he also referred to a
passage from the judgment of Zaffar Hussain Mir7a, J., in, the case of Benazir
Bhutto v. Federation of Pakistan PLD 1988 SC 416. While commenting upon the
above mentioned clause of the Objectives Resolution the learned Judge had
observed:
“The
expression ‘political justice’ is very significant and it has been placed in
the category of Fundamental Rights. Political parties have become subject‑matter
of Fundamental Right in consonance with the said provision in the Objectives
Resolution. Even otherwise, speaking
broadly,
our Constitution is a Federal Constitution based, on the model of Parliamentary
form of representative Government prevalent in the United Kingdom. It is also
clear from the Objectives Resolution that principles of democracy as indicate
by Islam are I to be fully
observed.
True, and far elections and the existence of political parties, is an essential
adjunct of a functional democratic system of Government.”
The
learned counsel for, the petitioner also referred to the meanings of the
expressions ‘political justice’ and ‘political rights’ as given in certain
dictionaries and drew our attention to a chapter on ‘political justice’ written
by a distinguished author.
14.
The expression ‘political justice’ represents an idea with myriad of facets and
for that very reason it does not admit of a precise definition. Broadly
speaking, every time a group or a class or even an individual is deprived of a
right or a privilege which is available to the majority of others similarly
placed or is discriminated against, one immediately starts thinking in terms of
political E justice. So far as the Objectives Resolution is concerned it does
not by itself add any new independent fundamental right in Chapter I of Part 11
of the Constitution so as to bring its violation within the compass of the
jurisdiction conferred on this Court by Article 184(3), ibid. Its position vis‑a‑vis
the other provisions of the Constitution was considered by this Court in the
case of Hakam Khan v. Government of Pakistan PLD 1W2 SC 595. Speaking for the
majority Nasim Hasan Shah, J. (now C.J.) observed:
“The
role of the Objectives Resolution, accordingly in my humble view,
notwithstanding the insertion of Article 2A in the Constitution (whereby the
said Objectives Resolution has been made a substantive part thereof) has not
been fundamentally transformed from the role envisaged for it at the outset;
namely that it should serve as beacon light for the Constitution‑makers
and guide them to formulate such provisions for the Constitution which reflect
ideals and the objectives set forth therein. Thus, whereas after the adoption
of the Objectives Resolution on 12th March, 1949, the Constitution‑makers
were expected to draft such provisions for the Constitution which were to
conform to its directives and the ideals enunciated by them in the Objectives
Resolution and in case of any deviation from these directives, while drafting
the proposed provisions for the Constitution the Constituent Assembly, before
whom these draft provisions were to be placed, would .take the necessary
remedial steps itself to ensure compliance with the principles laid down in the
Objectives Resolution. However, when a Constitution already stands framed (in
1973) by the National Assembly of Pakistan exercising plenary powers in this
behalf wherein detailed provisions in respect of all matters referred to in the
Objectives Resolution have already been made and Article 2A was made a
mandatory part thereof much later i.e. after 1985 accordingly now when a
question arises whether any of the provisions of the 1973 Constitution exceeds
in any particular respect the limits prescribed by Allah Almighty (within which
His people alone can act) and some inconsistency is shown to exist between the
existing provision of the Constitution and the limits to which the man‑made
law can extend; this inconstancy will be resolved in the same manner as was
originally envisaged by the authors and movers of the’ Objectives Resolution
namely by the National Assembly itself. In practical terms, this implies in the
changed context, that the impugned provision of the Constitution shall be
corrected by suitably amending it through the amendment process laid down in
the Constitution itself.”
As
already mentioned, political justice has innumerable dimensions. Its theme runs
throughout our Constitution. it is not confided to any particular portion
thereof, in fact, the various Articles of the Constitution receive inspiration
from or reflect one or the other aspect of political justice. There seems
little doubt that the paramount consideration before the Constitution‑makers
was that no section of the citizenry no matter how small it might be, should be
deprived of equal participation in the national life and no one should feel
that he has not had a fair deal. But then, the question before us is whether.
this Court has the jurisdiction to entertain this petition directly; for that
he has to show that there has been a violation of his right as included in
Chapter 1 of Part 11 of the Constitution. The mere assertion that the
petitioner is seeking political justice is not sufficient in this regard. On
the other hand, in my opinion the dissolution of the National Assembly or the
dismissal of his Cabinet are not matters which fall within the field in which
Article 17(2) operates. As already noticed the action of the President emanates
from the provisions of Article 58(2j(b). Whether this action is legal or not
has to be examined on the basis of the language of this clause and the
relevancy of the material upon which it was stated to have been based. It has
nothing to do with the violation of Article 17(2) for, as already noticed, the
Fundamental Right incorporated in this clause does not extend to guaranteeing
the duration of the membership of the National Assembly. I am therefore of the
opinion that this petition is not covered by clause (3) of Article 184 of the
Constitution and as such it ought not to have been riled directly in this‑Court.
However, as all my learned brothers, with, now, the exception of Sajjad Ali
Shah, J., are of a different view I stand overruled.‑ Being thus placed I
now proceed to record my views on the other question raised in the petition,
that is, whether the preconditions for the exercise of the power under Article
58(2)(b) were satisfied in this case.
15.
As already stated, the Dissolution order has been made by the President under
Article 58(2)(b) of the Constitution. Although, the expression used in the
Order is .... .... .... ... ... .... in exercise of the powers conferred on me
by clause (2)(b) of Article 58 of the Constitution of the Islamic Republic of
Pakistan and all other powers enabling me the
learned Attorney‑General
made
it clear that so far as the dissolution of the National Assembly was concerned
the President had acted entirely under clause (2)(b), ibid. It reads as
follows:
“Notwithstanding
anything contained in clause (2) of Article 48, the President may also dissolve
the National Assembly in his discretion where in his opinion,‑‑‑
(a)…………
(b) a situation has arisen in which the
Government of the Federation cannot be carried on in accordance with the
provisions of the Constitution and an appeal to the electorate is necessary.”
This
clause has already been examined by this Court in great depth in two earlier
cases reported as Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC
106 and Ahmad Tariq Rahim v. Federation of Pakistan PLD 1992 SC 046. In
Muhammad Saifullah Khan’s case, it was held after a threadbare analysis of the
clause that an order of dissolution could be made by the President only when
the machinery of the Government had broken down completely, its authority
eroded and the Government could not be carried on in accordance with the
provisions of the Constitution; it was further observed that the discretion
given by the clause to the President was not absolute but was a qualified one
in the sense that it was circumscribed by the objects of the law that conferred
it and that before exercising it he had to form an opinion objectively with
regard to the existence of the circumstances necessitating its exercise; it was
also held that it was open to the Courts to examine the order of dissolution in
order to see if it fell within the four corners of the clause. In Ahmad Tariq
Rahim’s case, the Court stated:
“It
is an extreme power to be exercised where there is an actual or imminent
breakdown of the Constitutional machinery, as distinguished from a failure to
observe a particular provision of the Constitution. There may be occasion for
the exercise of this power where there takes place extensive, continued and
pervasive failure to observe not one but numerous provisions of the
Constitution, creating the impression that the country is governed not so much
by the Constitution but by methods extra‑Constitutional.”
In
view of such extensive exposition of the nature ‑and extent of the power
vesting in the President under the clause in question there is very little that
I can add apart from merely reiterating that the most important precondition
laid down for its exercise is that circumstances must exist which clearly
indicate that the Government of the Federation cannot be carried on in
accordance with the provisions of the Constitution. The word ‘cannot’ as
occurring in the clause H brings in not only an element of impossibility but
also that of permanence in its construction and thus the President can exercise
his power thereunder only if there is material before him showing that the
affairs of the State have come to such a stage that it is no longer possible
for the Government to function except by violating the Constitution.
16.
Mr. Farooq Hassan argued that before dissolving the National Assembly the
President must also specifically come to the conclusion, apart from the
consideration that the Government of the Federation cannot function in
accordance with the Constitution, that an appeal to the electorate is necessary.
It is difficult to subscribe to this contention without qualification. Once the
President forms an opinion that the Government of the Federation cannot be
carried on in accordance with the Constitution he has just no option but to
place the matter before the electorate, who are the political sovereign under
our Constitution, to re‑exercise their choice with regard to the
composition of the Government. The constitution does not provide any other. way
out to the President for ours is a Parliamentary system of Government and
except in some specified matters the President has to act on the advice of the
Prime Minister in the performance of his functions irrespective of whether the
latter is an elected one or merely his own nominee under Article 48(5)(b) of
the Constitution. This feature of the Constitution was noticed by the Court in
Muhammad Saifullah Khan’s case when it commented adversely upon the absence of
the Prime Minister from the then Care‑taker cabinet. I should therefore
think that once the President is satisfied that the Government of the
Federation cannot function in accordance with the Constitution he has no option
but to place the matter before the political sovereign of our country.
17.
It was also contended by Mr. Farooq Hassan that the mere fact that the
Government ‘of the Federation could not be carried on in accordance with the
Constitution ought not to lead to the punishment of the members of the National
Assembly through a dissolution order for it was against the rule of natural
justice that the tenure of the members should be prematurely curtailed without
giving them an opportunity of correcting the situation. This contention is also
without substance. Under our system the Government of the Federation represents
the majority of the members of the National Assembly and it cannot survive
without their support. The Constitutional crisis or an impasse does not
ordinarily develop overnight. If the majority of the members do not take
remedial steps in time till the Constitutional stalemate actually occurs, the
members can only blame themselves in the event the President intervenes to save
the situation. Apart from that, dissolution of the Parliament is a normal
incident of parliamentary democracy and no member can claim that he must be
heard before dissolution.
18.
Mr. Farooq Hassan also canvassed the view that the power of dissolution under
Article 58(2)(b) could not be exercised by the President when the National
Assembly was in session in pursuance of the requisition of the members under Article
54(3). In support of his argument he relied upon the provisions of the said
clause (3) which states that when the Speaker summons the Assembly he alone can
prorogue it. This contention is clearly without any merit as the summoning and
prorogation of the Assembly and the dissolution of the Assembly are entirely
different matters. In fact, if the argument of Mr. Farooq Hassan is accepted it
will create a Constitutional I impasse inasmuch as to preclude the President
from exercising his power of dissolution even when he has overwhelming evidence
that the Government of the Federation cannot be carried on without violating
the Constitution the members may requisition and hold an interminable session
of the Assembly; this will clearly be an unwarranted clog on the power of the President under Article 58(2)(b),
ibid.
18‑A.
As already stated, the President made the
Dissolution Order on ~ 18‑4‑1993. Shortly thereafter, he made a
speech on the television and radio in which he elaborated some of the grounds
on which the Order was based. The Order has been reproduced in extenso in some
of the opinions recorded by my learned brothers. I need not therefore recite it
here in full. It contains eight grounds. My learned brothers have made
extensive comments on these grounds and have, with the exception of Sajjad Ali
Shah, J. held that these do not furnish an acceptable basis for the exercise of
the discretionary power vested in the President under Article 58(2)(b), ibid.
As I agree with their conclusion I would content myself by making only some
brief comments. J need hardly add that in exercising the jurisdiction of
judicial review this Court is neither competent nor aims at to substitute its
own opinion for that of the President.
19 ‘he first ground mentioned in the
Dissolution Order is as follows:
‘The
mass resignation of the members of the Opposition and of considerable numbers
from the Treasury Benches, including several Ministers, inter alia, showing
their desire to seek fresh mandate from the people have resulted in the
Government of the Federation and the National Assembly losing the confidence of
the people, and that the dissension therein, has nullified its mandate.”
In
his speech the President referred to this ground and stated:
During
the course of the arguments the learned Attorney‑General pointed out that
the total strength of the National Assembly was 217. At the time of the
dissolution 13 seats were already vacant on account of death and resignations
of members. Of the remaining members 88 had handed over their letters of
resignation to the President. Thus, if these resignations too had become
effective there would have been 101 vacancies in the National Assembly which
represented 50 per cent. of its total strength. He also pointed out that in the
General Election held in October, 1990 the political alliance of which the
petitioner was the leader had secured 37.3 per cent. of the total votes cast.
Consequent upon shifting of political alliances in the National Assembly the
petitioner now only represented 28.15 per cent. of the votes cast in the
General Election. In the circumstances, the opinion of the President that the
present National Assembly and the petitioner’s Government, had ceased to
possess a representative character was well‑founded.
It
will be noticed that in this ground reference has been made to the resignations
of the members of the Opposition as well as of the treasury benches including
some Ministers. It is also stated that those who had resigned were desirous of
seeking fresh mandate from the people. It was not disputed by the learned
Attorney‑General that despite these resignations the petitioner still had
the support of members who constituted more than half of the total membership
of the National Assembly. Further, the learned Attorney‑General was not
clear that the resignation letters delivered to the President were intended to
be acted upon. To begin with, his stand was that these resignation letters were
handed over to the President only by way of protest and that these were not
meant to be acted upon; later, he changed his position and stated that the
resignation letters delivered to the President were also intended to be acted
upon. However that may be, the position first adopted by him seems to be
correct, ‘for, if those who had signed these letters were serious about leaving
the National Assembly and seeking a fresh mandate from the people they would
have sent them to the Speaker of the National Assembly who is the authority
designated by the Constitution for the purpose. See Article 64(l) of the
Constitution. The suggestion that the members had no faith in the Speaker and
for that reason did not send the letters of resignation to him is entirely
unconvincing for in none of the letters any such allegation has been made by the
member concerned. In the circumstances, the recital in the Dissolution Order
that those who had given their resignations to the President were desirous of
seeking fresh mandate from the people is based on a mere surmise. As regards
the percentage of the electorate which the petitioner now represents the
statement prepared by the learned Attorney‑General is misleading for
despite the shifting of the political alliances in the National Assembly the
petitioner continues to have the support of more than 50 per cent. of the total
membership of the National Assembly. The learned Attorney-General did not care
to work out the percentage of the electors which the members now supporting the
petitioner represent.
21.
During the course of the arguments Mr. S. M. Zafar, who appeared on behalf of
the Care‑taker Prime Minister brought to our notice a case which came up
for consideration from Western Nigeria before the Judicial Committee of the
Private Council. It is reported as Adegbenro v. Akintola and another (1963) 3
All ER 544). In this case the Governor of Western Nigeria had removed the
Premier from his office on receipt of a letter signed by a majority of the
members of the House of the Assembly. This case has hardly any relevance to the
petition before us for here it is not being alleged that the petitioner had
lost the support of the majority of the members of the National Assembly.
22.
As repeatedly stated above, ours is a parliamentary democracy. Ordinarily it is
the Prime Minister who has the right to ask for the dissolution of the National
Assembly. The Prime Minister can only be removed from office if he loses the
support of the majority of the members of the Assembly. If the en mass
resignation of the members of the Opposition is accepted as a valid test for
determining if the Assembly has lost its representative character it will ‘
lead to a situation where a democratically elected Government can be
blackmailed; in that case the majority in the Assembly will be at the mercy of
the minority, for, though unable to defeat the Government in the House the
latter will be able to use the device of en mass resignation in order to get
the Government dismissed or have the Assembly dissolved.
23.
1 am therefore of the opinion that the material placed before the Court does
not show that the National Assembly had lost the confidence of the people or
the dissension therein had nullified its mandate. Accordingly, the first ground
mentioned in the Dissolution Order was not available to the President for the
exercise of his discretion under Article 58(2)(b), ibid.
24.
It is the second ground which has elicited the most elaborate arguments from
both sides. At one stage the learned Attorney‑General described it as the
most important one from his point of view. It reads as follows:
“The
Prime Minister held meetings with the President in March and April and the last
on 14th April, 1993 when the President ‘urged him to take positive steps to
resolve the grave internal and international problems confronting the country
and the nation was anxiously looking forward to the announcement of concrete
measures by the Government to improve the situation.’ Instead, the Prime
Minister in his speech on 17th April, 1993 chose to divert the people’s
attention by making false and malicious allegations against the President of
Pakistan who is Head of State and represents the unity of the Republic. The
tenor of the speech was that the Government could not be carried on in
accordance with the provisions of the Constitution and he advanced his own
reasons and theory for the same which reasons and theory, in fact, are
unwarranted and misleading. The Prime Minister tried to cover up the failures
and defaults of the Government although he was repeatedly apprised of the real
reasons in this behalf, which he even accepted and agreed to rectify by
specific measures on urgent basis. Further, the Prime Minister’s speech is
tantamount to a call for agitation and in any case the speech and his conduct
amounts to subversion of the Constitution.”
From
the speech of the President, too, it is evident that he regarded this ground as
one of the main considerations for making the Dissolution Order.
25.
As will appear from its perusal, the President has in this ground referred to
the several meetings which he had with the petitioner in the months of March
and April, 1993, wherein he had been urging the latter to take positive steps
to resolve the grave internal and international problems confronting the
country as the people were anxiously looking forward to the announcement of
concrete measures by his Government to improve the situation. In these meetings
the petitioner had agreed to rectify the situation by taking remedial steps on
an urgent basis. But then, without any justification he chose to deliver a
speech on the electronic media on 17‑4‑1993 wherein he made false
and malicious allegations against the President who was not only Head of the
State but also represented the unity of the Republic. One of the objects of the
speech of the petitioner was to divert the people’s attention from the real
issues and he had attempted to do so by making unwarranted and misleading
attacks on the President. The speech was a call to agitation and amounted to
subversion of the Constitution.
26.
The text of the speech made by‑the petitioner on 17‑4‑1993
has been placed before us. It is indeed strongly‑worded. There are clear
references in‑it to the President and the Presidency, and allegations
have been made that the office and place which were intended to represent the
symbol of the unity of the Republic were being used to sow seeds of discord and
destabilise an elected Government by subverting the loyalties of its
supporters. It is indeed a harsh speech and constitutes a strong denunciation
of the President.
27.
It was ‘contended by Mr. Khalid Anwar who appeared for the petitioner that on
the basis of the speech the petitioner and his cabinet ought not to have been
condemned. He pointed out that it was made in the backdrop of extraordinary
circumstances unheard of in a parliamentary democracy where the Head of the
State had taken upon himself to weaken an elected Government. All that the
petitioner did was to inform the people about the forces that were actively
engaged in destabilising his Government. There was an atmosphere of uncertainty
in the country and the people were in a state of bewilderance as all sorts of
speculations were rife. They had the right to know what was transpiring in the
corridors of powers. By making the speech the petitioner merely performed a
duty which he owed to the people.
28.
Although it may be debatable whether the petitioner should have made such a
strongly‑worded speech or not but it cannot be denied that there are some
extenuating circumstances in his favour which cannot be overlooked while assessing
the propriety of his delivering such a speech. A large volume of clippings from
the national Press has been placed on the record by both parties. It will
appear from these clippings that for a few months preceding the dissolution of
the Assembly the entire Press was persistently carrying reports of an
irreconcilable rift between the President and the petitioner. The President Was
being associated (whether rightly or wrongly) with a lobby which was actively
advocating the dissolution of the National Assembly and the dismissal of the
petitioner’s cabinet. There were also reports that the said lobby was weaning
away. the loyalties of the members of the National Assembly supporting the
petitioner’s Government with the threat of dissolution. In this context, the
name of the Governor of a Province was also being taken, and it was alleged
that while staying in the President House he was obtaining resignations of the
members of the Assembly to strengthen the hands of the President for dissolving
the National Assembly. The President must have been aware of what was being
reported in the national press about him and the activities of the lobby which
allegedly had his patronage. However, he did not take any steps to clarify his
position. The learned Attorney‑General stated that the office that the
President occupied was too exalted to permit him to take notice of the enamors
and gossips that were being spread by irresponsible persons. I am afraid I
cannot countenance such an explanation. No doubt the office of the President is
a very high one but then he could not have ignored what the entire Press was
reporting about his relations with the Prime Minister and the activities of the
persons who were described to be close to him. He also could not afford to keep
silent when the funnier‑makers and gossipmongers were having a field
day, creating an aura of uncertainty and insecurity in the country. In the
prevailing circumstances it was but natural for the petitioner to feel
threatened and alarmed that some forces outside the Constitution were out to
destroy his Government through intrigues. His speech can hardly be treated as
one aimed at subverting the Constitution.
29.
The learned Attorney‑General described the speech of the petitioner as
full of distortions and incorrect statements. In this context, he referred to
the minutes of the meeting which the petitioner had with the President oil 14‑4‑1993.
He placed before us a copy of the minutes of the meeting prepared by the
petitioner’s secretariat. He pointed out that these minutes clearly indicate
that the relations between the President and the Prime Minister were normal;
the petitioner was looking forward to the President for guidance and
counselling and bad even agreed that his meetings and consultations with the President
should be more frequent to ward off speculations and avoid misunderstanding. He
argued that this being the state of relations between the President and the
petitioner on 14‑4‑1993 nothing had happened till 17‑4‑1993
when the petitioner came out with a speech extremely defamatory of the
President.
30.
It is difficult to treat the minutes as a true reflection of the relations
between the President and the petitioner. To begin with, it may be mentioned
that there was nothing on the record to show that the President had accepted
these minutes as a correct record of what transpired between him and the
petitioner; instead in respect of the meeting his secretariat chose to issue
its own handout which reads as follows:‑‑
The
Prime Minister called on the President today and they reviewed the grave and
pressing national and international problems facing the country. The meeting
lasted for above two hours.
The
President urged the Prime Minister to undertake positive steps as early as
possible to address effectively these problems to the satisfaction of the
public representatives and the people. The Prime Minister undertook to do so on
an urgent basis and to revert to the President which precise measures in this
behalf.
The
clippings from the national press do indicate that for sometime before the
meeting the petitioner had been making efforts to improve his relations with
the President. He had already altered his stand on the Eighth Amendment and had
gone to the extent of nominating the President as his party’s candidate for the
next Presidential Election. These were the two matters which according to the
Press had soured his relations with the President. The manner in which the
minutes have been worded too seems to be an effort on the para of the petitioner
in that direction. In this regard, it should be noticed that these minutes were
taken by two Federal Ministers to the President and were not forwarded to the
latter’s Secretariat through the usual official channel. Admittedly, these
Ministers were making serious efforts to resolve the differences between the
President and the petitioner and to bring them close to each‑other. The
tone of these minutes is very friendly and comes in sharp contrast with the
language of the handout issued by the President’s Secretariat.
31.
It is contended by the learned Attorney‑General that for the successful
functioning of the Federal Government it was necessary that the President and
the Prime Minister should have a working relationship. These were many matters
relating to the affairs of the State, requiring these two high functionaries to
get together for discussion across the table. After the petitioner had
condemned the President as an intriguer, as a person who was destroying the
Constitution and as one who had desecrated the office of the President there
could not be any hope of the two meeting together face to face without
acrimony. In the circumstances there could hardly be any doubt that with the
petitioner as head of the Federal Cabinet the Government of the Federation
could not be carried on in accordance with the provisions of the Constitution.
32.
It seems difficult to support this contention. To begin with, personal feelings
of the President and the Prime Minister towards each other do not enter into
and are in fact irrelevant so far as the conduct ‘of the affairs of the
Federation is concerned. Our Constitution clearly demarcates the spheres of
activity of the President and the Prime Minister. Except in matters where the
Constitution clearly expresses an intention to the contrary, the President has
no option but to act on the advice of the Cabinet or the Prime Minister. This
is exactly what Article 48 (1) of the Constitution states. If he does not
approve of the advice given to him all that he can ask is that the advice
should be reconsidered by the cabinet. But if the same advice is re‑tendered
to him he is under a duty to act in accordance therewith. I therefore do not
see how the President can invoke his powers under Article 58(2)(b), ibid, to
dissolve the National Assembly if his relations with the Prime Minister are on
an edge.
33.
The learned Advocate‑General of the Punjab was of the opinion that the
Prime Minister was subordinate to the President. This opinion rinds no support
whatsoever from the Constitution and the learned Advocate‑General did not
even care to elaborate his contention. It has already been noticed that the
Prime Minister represents the majority party of the members of the National
Assembly which is a sovereign body. He is only responsible to the National
Assembly. Except in certain specified matters the President to act upon this
advice. The President cannot tell the Prime Minister how he should perform his
functions which fall in the latter’s sphere except by way of advice which is
not binding on him. The President cannot remove him from office unless he also
chooses to dissolve the National Assembly whose representative he is. Thus, the
element of subordination so far as the office of the Prime Minister vis‑a‑vis
that of the President is concerned does not exist.
34.
For the reasons just stated I am of the opinion that the second ground
mentioned in the Dissolution Order does not furnish a legal basis for
dissolving the National Assembly.
35.
In the third ground mentioned in the Dissolution Order the petitioner’s
Government has been accused of failing to uphold
and protect the provisions of the Constitution which demarcate and define
the respective spheres of activity, both executive and legislative, of the
Federation and the Provinces and certain Constitutional institutions and in
this context particular reference has been made to the Council of Common
Interests and National Economic Council. It is further alleged that the
Constitutional powers, rights and functions of the Provinces have been usurped,
frustrated and interfered with in violation of the Constitution, in particular,
Article 97, which sets down the extent of the executive authority of the
Federation.
36.
Consequent upon the General Elections to the Provincial Assemblies in October
1990 the Governments that were formed in the Provinces were very close to that
of the petitioner. In fact, in the
Punjab the Alliance of which the petitioner was the head, assumed power.
Consequently, there was greater cooperation among all the rive Governments than
what had been witnessed in the immediate past. Now, it does not appear that any
of the Provincial Governments ever charged the petitioner’s Government with
trespassing into its field. The four letters of the Chief Ministers of the Provinces
of Sindh, Balochistan and N.W.F.P. which
were placed on the record on behalf of the respondents to substantiate the
accusation were of hardly any assistance to the learned Attorney‑General.
Two of these letters were written by the Chief Minister of N.‑W.F.P. One
was addressed to the petitioner and the other to the Minister for Provincial
Coordination in his cabinet. The remaining two letters were written by the
Chief Minister of Sindh to the President and the Chief Minister of Balochistan
to the petitioner. As regards the letter of the Chief Minister, Sindh, it was
written only on 21‑3‑1993, that is, when allegedly the President
had started collecting material for dissolving the National Assembly. However
that may be, it does not contain any assertion that the petitioner’s Government
was flouting the Provincial autonomy as envisaged by the Constitution. it is
also to be noticed that prior to this any complaint of the nature mentioned in
this letter he had not made against the
petitioner’s Government. In his letter
the Chief Minister, Balochistan, has merely complained against the reduction of
his Province’s share in the development surcharge. In the two letters written
by Chief Minister of N.‑W.F.P., certain grievances of the Province with
regard to non‑payment of net profits payable on hyderal generation in
accordance with the decision of the Council of Common Interests, privatisation
of WAPDA, Railways and Sid Northern Gas, concessions given to an industrial
complex in the Port Qasim area and setting up of the National Highway authority were agitated. These letters
furnish too tenuous a basis to hold that the petitioner’s Government was not
respecting the Constitutional limits in the exercise of the executive authority
of the Federation or was .trespassing into the Provincial field.
37.
As regards the Constitutional institutions like the Council of Common Interests
and National Economic Council it was not the case of the Attorney-General that
no meetings of these Councils were ever held by the petitioner’s Government. On
the other hand, he contended that the two Councils were not consulted by the
petitioner’s Government in matters of vital importance even though these fell
within their spheres. In this regard, he made particular reference to the policy
of privatisation adopted by the petitioner’s Government. He pointed out that
under Article 154 (1) of the Constitution it was the function of the Council of
Common Interests to formulate and regulate policies in relation to matters
included in Part 11 of the Federal Legislative List. According to him this List
included the Railawys, WAPDA, nationalised banks and a large number of
industrial units such as cement factories etc. Without asking the Council of
Common Interests to first frame policies with regard to the functioning of
these bodies the petitioner’s Government had started selling off their
properties and had transferred the nationalised banks and industrial units to
the private sector. This was, he argued, clearly a violation of the provisions of
Article 154 (1), ibid.
38.
There is substance in the assertion of the learned Attorney‑General that
the Government ought not to have transferred any units included in Part II of
the Federal Legislative List to the private sector in the absence of a policy
or policies framed by the Council of Common Interests. But, then, perhaps this
was a case of unintentional lapse on the part of the petitioner’s Government
and not an instance of flagrant violation of the Constitution. It was for the
first time in December 1992 that the Privatisation Commission which had been
constituted to examine certain aspects of privatisation drew the
Government
to this omission. It stated in its report:
…….the whole process of privatisation,
unilaterally initiated by the Federal Government, bypassing the Council of
Common Interests and the NEC, appears to be ultra vires of the Constitution.”
Immediately
thereafter the petitioner’s Government called a pre‑Council of Common
Interests Meeting. It was held on 11‑4‑1993 and was attended by the
representatives of the Provinces. It prepared agenda for the Council. However,
before the Council could meet the Dissolution Order was made. In any case, the
failure of the Government in asking the Council of Common Interests to frame a
policy for privatisation can hardly lead to the conclusion that a stage had
come where the Government of the Federation could not be carried on in
accordance with the Constitution. The Council in any of its meetings could have
regularised the steps already taken in ignorance of the Constitutional V
position and even the joint session of the Parliament where the petitioner’s
Government enjoyed the majority could have validated the past acts of the
Governement in this regard. I am therefore of the opinion that ground (c) could
also not form the basis for the exercise of power by the President under
Article 58 (2) (b), ibid.
39.
Ground (d) contains allegations of mal-administration, corruption and nepotism
in the petitioner’s Government and ground (e) accuses the petitioner’s
Government of unleashing a reign of terror against its opponents and mediamen.
In support of these allegations the learned Attorney‑General relied
entirely upon Press clippings. No doubt, these allegations if true would raise
a serious question for consideration whether a Government which has stooped so
low can be said to be functioning in accordance with the Constitution and if
there would not be a sufficient justification for the President to invoke his
powers under Article 58 (2)(b), ibid, to end the misery of the people. But then
Press clippings can hardly form a basis for holding that the accusations made
therein stand proved. It was not the case of the respondent that the
allegations contained in the Press clippings were subjected to any inquiry of
any sort or consequent upon an inquiry the petitioner’s Government was found
guilty. An order of dissolution of the National Assembly on the basis of
unsubstantiated allegations can hardly be sustained.
40.
Ground (f) accuses the petitioner’s Government of violating the Constitution
under rive separate sub‑heads. To begin with, it is alleged that the
Cabinet w8 not taken into confidence when decisions on matters of policy were
being taken and that numerous Ordinances had been issued without consulting it.
Ordinarily in the Parliamentary form of Government the Cabinet is consulted
when important decisions, (including issuance of Ordinances) are taken because of the collective responsibility of
the members thereof. However, there is no such strict requirement that its non‑compliance
would lay the Prime Minister open to the charge of violating the Constitution.
It is then X stated that the Federal Ministers had at one time been asked not
to see the President. Mr. Khalid Anwar denied that any such direction was given
by the petitioner to any of his Cabinet colleagues and, if the Press reports
are ‘ any indication, the members of the petitioner’s cabinet had been
frequently seeing the President. However that may be, even if the petitioner
had given any such direction that would be a case of extreme discourtesy and
not one of violation of the Constitution, for, in respect of matters which do
not fall within his exclusive sphere the President had only the right of
information and that too only through the Prime Minister. See Article 46 of the
Constitution.
Sub‑head
(iii) refers to the misuse of the resources and agencies of the Government,
including statutory corporations, authorities and banks, for political ends and
purposes and for personal gains. The learned Attorney-General was unable to
refer to any case where the petitioner had used the said resources of agencies
for his own enrichment of to secure political goals. Another sub‑head
accused him for being responsible for massive wastage and dissipation of public
funds and assets at the cost of the national exchequer without legal or valid
justification resulting in increased deficit financing and indebtedness and ‘
thus adversely affecting the national interests including defence. In this
context, the learned Attorney‑General has referred to an agreement which
the petitioner’s Government was negotiating with ,a foreign firm for improving
telecommunication facilities in Pakistan. According to him this agreement will
not only compromise the defence of the country but also hand over an
organization in which Pakistan had vital interest to a foreign company. It does
not appear that the agreement has yet been finalised and there can be little
doubt that the matter will come before the Parliament for enacting the
requisite law to give effect to the provisions thereof. However that may be, it
cannot reasonably be said on the basis of the agreement which has yet to be
finalised that the petitioner’s Government cannot function in accordance with
the Constitution. The last sub‑head relates to the treatment meted out by
the petitioner’s Government to the Civil Services and in that context induction
of certain officers of the armed forces in civil services and promotion of
officers of Income tax Department have been referred.
41‑A.
At this stage it may be noticed that the President has the right to address the
National Assembly and to send messages to it. It does not appear that before
exercising his extraordinary power of dissolution he sent any message to the
National Assembly pointing out the shortcomings of the Government as detailed
in sub‑heads (iii), (iv) and (v). On the other hand, it is quite clear
from the address which he made to the joint session of the Parliament only four
months before making the Dissolution Order that he was satisfied with the
performance of both the petitioner’s Government and the National Assembly. In
the circumstances, I am of the view that ground (1) was also not available to
the President for dissolving the National Assembly.
42.
Ground (g) takes into account the serious allegations which were made by Begum
Nuzhat Asif Nawaz about the highhanded treatment meted out to her late husband
by the petitioner’s Government and the circumstances culminating in his death.
On the basis of these allegations a conclusion had been drawn that the highest functionaries of the petitioner’s
Government had been subverting the authority of the Armed Forces and the
machinery of the Government and the Constitution itself. It may be mentioned
that General Asif Nawaz, Army Chief of Staff, suddenly died in January, 1W3.
Three months later his widow held a Press conference wherein she alleged that
her husband had not died a natural death and that some members of petitioner’s
cabinet had been threatening and maltreatment him during his lifetime. As
regards the allegation of maltreatment and issuance of threats is concerned
there is no evidence before this Court apart from the assertion of the Begum
Sahiba A herself. As regards the circumstances surrounding the death of the
General Commission consisting of three Judges of this Court was constituted.
According to the finding of the Commission the General had died on natural
causes. In the circumstances, it is surprising that the allegation made by the
begum Sahiba has been made a ground for dissolving the National Assembly.
(43)Ground
(h) reads as follows:‑
“The
Government of the Federation for the above reasons, inter alia, is not in a
position to meet properly and positively the threat to the security and integrity
of Pakistan and the grave economic situation confronting the country,
necessitating the requirement of a fresh mandate from the people of Pakistan.”
So
far as the grounds ‘a’ to ‘g’ are concerned I have already examined them. I am
of the view that none of these either by itself or in conjunction with others
fulfils the precondition for the exercise of the power under Article 58 (2)
(b). As regards the allegation that the petitioner’s Government was not in a
position to meet properly and positively the threat to the security and
integrity of Pakistan or deal with the grave economic situation confronting the
country it is‑too vague to require any comment. As already stated, only
four months prior to the making of the Dissolution order the President had addressed
the joint session of the Parliament. He did not in his address refer to the
inability of petitioner’s Government to ‘deal ‑with the threats’
mentioned in ground (h). It is incredible that within a space of four months
its performance had degenerated to the extent that it‑could no longer
look after the affairs of the State and
that it became imperative that it should seek a fresh mandate from the people of Pakistan. It was clearly an
inadmissible ground for dissolving the National Assembly.
44.
For the reasons stated above, I am in agreement with the view expressed by the
majority of my learned brothers that the grounds given by the President in
support of the Dissolution Order could not at all lead to the conclusion that
the Government of the Federation could not be carried on in accordance with the
Constitution. Accordingly, the precondition for the exercise of the power by
the President under Article 58(2)(b) was not satisfied and as such the said
Order was not sustainable.
45.
The above are ‑my reasons in support of the Short Order already
announced.
AJMAL MIAN, J.‑‑‑I have had the advantage of reading the proposed opinion
of my learned brother Shaflur Rahman, J. Though I agree with the conclusion recorded by his Lordship, but I
would like to record my own reasons.
The petitioner, who was the
Prime Minister, through this petition under Article 184 (3) of the Constitution
of the Islamic Republic of Pakistan 1973
(hereinafter referred to as ‘the Constitution’) has impugned the President’s
Order dated 18‑4‑1993 dissolving the National Assembly and
dismissing the Cabinet and the petitioner as the Prime Minister, passed
pursuant to the power conferred on him under Article 58‑ (2) (b) of the
Constitution.
2. The learned Attorney‑General,
Mr. Aziz A. Munshi, appearing for the Federation and Mr. S.M. War, learned
Senior ASC appearing for the Care taker Prime Minister, have raised a
preliminary objection as to the maintainability of above constitutional
petition directly in this Court besides opposing the same on merits. It would
be appropriate first to deal with the above preliminary objection before
dilating upon the merits of the case. The precise objection raised by them was
that the impugned order has not violated any of the Fundamental Rights
contained in Chapter 1 of Part II of the Constitution and, therefore, clause
(3) of Article 184 of the Constitution could not be pressed into service by the
petitioner.
On the other hand, Mr. Khalid
Anwar, learned ASC appearing for the petitioner, has contended that in order to
invoke above clause (3) of Article 184 of the Constitution, it is necessary to
show that a question of public importance with reference to the enforcement of
any of the Fundamental Rights conferred by Chapter I of Part 11 of the
Constitution is involved. According to him, the above requirement is met in the
present case. Dr. Farooq Hassan, learned ASC appearing for another petitioner,
namely, Mr. Ajmal Khattak, joined him in his above contention.
3.
. In order to appreciate the above controversy, it may be advantageous to quote
above clause (3) of Article 184 of the Constitution, which reads as follows.‑‑
“184(3).‑‑Without
prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the enforcement of any of the Fundamental
Rights conferred by Chapter I of
Part 11 is involved, have the power to make an
order of the nature mentioned in the said Article.”
A
perusal of the above‑quoted clause indicates that without prejudice The provisions of Article, 199 of the
Constitution, which confers A constitutional jurisdiction on the High Courts,
the Supreme Court has been empowered to make an order of the nature mentioned
in the above Article 199 provided the following two conditions are fulfilled:‑‑
a
question of public importance is involved;
(ii) with reference to the enforcement of
any of the Fundamental Rights guaranteed by Chapter 1, Part 11 of the
Constitution, i.e. Articles 8 to 28.
4.
The parties are not at issue on the above first requirement. It is a common
ground that the above case involves‑ questions of public importance. But
according to the learned Attorney‑General and Mr. S.M. War, the above
second requirement is not present in the case in hand. The thrust of their
arguments was that in the instant case the question involved is, whether the
impugned order falls within the ambit of Article 58(2)(b) of the Constitution
and not, whether the above order is violative of any of the Fundamental Rights.
According to them, there is no vested right in the petitioner or any other
person to continue to be a member of the National Assembly for a period of five
years nor there is any such right to continue to be the Prime Minister or a
Minister for the above period. To reinforce the above submissions, they have
further contended that there is a distinction between a Fundamental Right and a
Political or Legal Right. According to Mr. S.M. Zafar, all political activities
outside the Parliament fall under the category of Fundamental Rights guaranteed
under Article 17 of the Constitution but once a political party gets inside the
Parliament, the right becomes political or legal. Mr. Aziz A. Munshi, learned
Attorney‑General, has put the above submission, somewhat differently by
urging that the political process begins with the formation of a political
party under Article 17 of the Constitution but it is carried forward or is
taken over by other Articles of the Constitution and laws.
Whereas,
Mr. Khalid Anwar in furtherance of his above submission besides relying on
Article 17, has heavily relied upon the following portion of the Objectives
Resolution, which was incorporated as a Preamble in original Constitution, and
which has now been incorporated as a substantive part of the Constitution by
Article 2A thereof‑
“Wherein
shall be guaranteed Fundamental Rights, including equality of status, Of
opportunity and before law, social, economic and political justice, and freedom
of thought, expression, belief, faith, worship and association, subject to law
and public morality;”
According
to him the term “political justice” employed in above quoted portion of the
Objectives Resolution encompasses the right to participate in election, to form
the Government, and if one has majority, to run the Government so long as it is
not lawfully terminated. His further submission was that by virtue of the above
para. of the Objectives Resolution, three additional Fundamental Rights
relating to Political, Social and Economic Justice are to be read into the
Constitution. He also submitted that besides the violation of Article 17 of the
Constitution, Article 19 relating to freedom of speech has also been violated
as the impugned order was passed because of the speech made by the petitioner
on 17th April, 1993, on the electric media.
5.
It may be pertinent to observe that Article 2A, which has been incorporated by
P.O. 14 of 1985, in order to make the Objectives Resolution as a substantive
part of the Constitution, has been subject‑matter of a recent judgment of
this Court in the case of Hakim Khan and 3 others v. Government of Pakistan
(PLD 1992 SC 595), wherein Nasim Hasan Shah, J. (as his Lordship then was) and
Shariur Rahman, J. have dealt with the effect of the incorporation of Article
2A as a part of the Constitution as under:‑‑
“Nasim
Hasan Shah, J.‑‑‑The role of the Objectives Resolution,
accordingly in my humble view, notwithstanding the insertion of Article 2A in
the Constitution (whereby the said Objectives Resolution, has been made a
substantive part thereof) has not been fundamentally transformed from the role
envisaged for it at the outset; namely that it should serve as beacon light for
the Constitution makers and guide them to formulate such provisions for the
Constitution which reflect ideals and the objectives set forth therein. Thus,
whereas after the adoption of the Objectives Resolution on 12th March, 1949,
the Constitution‑makers were expected to draft such provisions for the
Constitution which were to conform to its directives and the ideals enunciated
by them in the Objectives Resolution and in case of any deviation from these
directives, while drafting the proposed provisions for the Constitution the
Constituent Assembly, before whom these draft provisions were to be placed,
would take the necessary remedial steps itself to ensure compliance With the
principles laid down in the objectives Resolution. However, when a Constitution
already stands framed (in 1973) by the National Assembly of Pakistan exercising
plenary ‑powers in this behalf wherein detailed provisions in respect of
all matters referred to in the Objectives Resolution have already been made and
Article 2A was made a mandatory part thereof much later i.e. after 1985
accordingly now when a question arises whether any of the provisions of the
1973’ Constitution exceeds in any particular respect, the limits prescribed by
Allah Almighty (within which His people alone can act) and some inconsistency
is shown to exist between the existing provision of the Constitution, and the
limits to which the man‑made law can extend; this inconsistency will be
resolved in the same manner as was originally envisaged by the authors and
movers of the Objectives Resolution namely by the National Assembly itself. In
practical terms, this implies in the changed context that the impugned
provision of the Constitution shall be corrected by suitably amending it
through the amendment process laid down in the Constitution itself.”
“Shafiur
Rahman, J.‑‑‑18. The Court’s primary duty is to adjudicate by
reference to positive law in a manner to lend certainty,, clarity and precision
to the application of law to concrete questions of law and fact necessarily
required to be decided. The Court should not undertake examination of theoretical
academic questions nor should ordinarily look for anomalies in the Constitution
with a view to suggest to Parliament amendment or improvement in the
Constitution. If the introduction of Article 2A of the Constitution as a
substantive provision of the Constitution does not by itself authorise the
Court to adopt it as a test of repugnancy with regard to the other
Constitutional provisions it would be better for the superior Courts not to
undertake this exercise or to record opinions on merits with regard to such
repugnancy. That would be a commitment not conducive to the purely judicial
functions that the Courts are required to perform under the Constitution.”
6. 1 am inclined to
take the view that the factum that the Objectives Resolution has been incorporated
as a substantive part of the Constitution by virtue of Article 2A, does not
justify reading into any additional Fundamental Rights in the Chapter
pertaining to Fundamental Rights contained in the Constitution. The object of
adopting the Objectives Resolution in 1949 has been thoroughly discussed in the
case of Hakim Khan (supra), namely, to provide guideline and to serve as a
beacon light to the framers of Constitution but it was never intended or
designed to be enforced as Fundamental Rights. The framers of the Constitution
have in fact acted upon, on the Objectives Resolution by incorporating the
various Fundamental Rights contained in Articles 8 to 27, which cover Political
Social and Economic Justice, to add to the above list any other Fundamental
Right on the basis of the Objectives Resolution is the function of the
Parliament and not of the Court. Flow ever, the Courts while construing
Fundamental Rights should keep in view the Objectives Resolution and should
place widest possible construction as to advance the goals targeted/envisaged
therein.
Mr.
S.M. Zafar has pointed Gut that pursuant to the Objectives Resolution, Articles
9, 10, 12, 13, 14, 15, 16, 17, 19 and 25 inter alia pertaining to Political
Justice have been incorporated. He has categorized the Fundamental Rights into
following categories:‑‑
(i) Fundamental Rights relating to
Political Justice, namely, Articles 9 (Security of person), 10.(Safeguards as
to arrest and detention), 12 (Protection against retrospective punishment), 13
(Protection against double punishment and self‑incrimination), 14
(Inviolability of dignity of man, etc.), 15 (Freedom of movement, etc.), 16
(Freedom of movement)
(ii) Fundamental
Rights pertaining to Social Justice, i.e. Articles 9 (Security of person), 11
(Slavery, forced labour, etc., prohibited), 13 (Protection against double
punishment and self‑incrimination), 14 (1) (Inviolability of dignity of
man, etc.), 26 (Non‑discrimination in respect of access to public), 27
(Safeguard against discrimination in services) and 28 (Preservation of
language, script and culture).
(iii) Fundamental Rights relating to Economic
Justice, namely, Articles 18 (Freedom of Trade, business or profession), 21
(Safeguard against taxation for purposes of any particular religion), 23
(Provision as to property) and 24 (Protection of property rights); and
assembly), 17 (Freedom of association), 19 (Freedom of speech etc) and 25
(Equality of citizens).
Fundamental
Rights pertaining to Religious Rights, namely, Articles 20 (Freedom to profess
religion and to manage religious institutions), 21 (Safeguard against taxation
for purposes of any particular religion) and 22 (Safeguards as to educational
institutions in respect of religion, etc.).
The
above categorisation indicates that the framers of the Constitution were not
oblivious of the mandate given to them by the Objectives Resolution.
7.‑‑‑(a)
Both the parties have referred to the treatises and dictionaries on the term ‘Political
Justice” in order to show, what it implies. Mr. Khalid Anwar has relied upon
the following extracts from the book “Justice and Natural Social and Political”
by Dr. Chatervedi, wherein the above term has been dilated upon as follows:‑‑
“Political
justice would, therefore proceed much farther than mere right to adult suffrage
or equal franchise and would embrace within its fold the ability and the
liberty of the individual to share directly or indirectly in the administration
of each body, institution or establishment serving his needs.
4. Rights enforceable against
State.‑‑Political justice in the sense in which it was
conceived by Marcus Aurelius in his Mediations, is mere idea of a polity in
which there is the same law for all, a polity administered with regard to equal
rights and equal freedom of speech, and the idea of a Government which respects
most of all the freedoms of the governed; and in that sense, it is mere
overlapping of the other values ensured in the name of equality of status and
of opportunity or liberty of thought, expression, belief, faith and worship.
Political justice, in this sense stands for the guaranteed Fundamental Rights.”
He has also referred to the meaning in ‘Black’s Law Dictionary’ (5th Edition)
and in the ‘Words and Phrases, (Permanent Edition‑‑West Publishing
Co.), Volume 32A:
Black’s
Law Dictionary :
“Political
rights, ‘‑‑Those which may be exercised in the formation or
administration of the government. Rights of citizens established or recognized
by Constitutions which give them the power to participate directly or
indirectly in the establishment or administration of government.”
‘Political
rights’ consist in the power to participate directly or indirectly in the
establishment or administration of government such as the right of citizenship,
suffrage, etc. Friendly v. Olcott, .123 P.53, 56, 61 Or. 580”
‘Political
rights’ consist in the power to participate, directly or indirectly, in the
establishment and management of the government. State ex rel. McGoveren v.
Gilkison, 196 N.E. 231, 208 Ind. 416.”
‘Political
rights’ are fixed by the Constitution and consist in the power to participate,
directly or indirectly, in establishment or management of government, examples
being right of voting for public officers, and of being elected. Caven v.
Clark., D.C. Ark. 78 F. Supp. 295, 298, 303.
‘Political
rights’ consist in the power to participate, directly or indirectly, in the
establishment or management of the government These political rights are fixed
by the Constitution. Every citizen ha the right of voting for public officers
and of being elected. These are the political rights which the humblest citizen
possesses. Winnett v Adams, 99 N.W. 681, 684, 71 Neb, 817, quoting 2 Bouv. Law
Dict.”
(b)
On the other hand, Mr. S.M. Zafar has quoted the following passages from the
book titled, “A Theory of Justice” by John Rawals:
“I
now wish to consider political justice, that is, the justice of the
constitution, and to sketch the meaning of equal liberty for this part of the
basic structure. Political justice has two aspects arising from the fact that a
just constitution is a case of imperfect procedural justice. First, the
constitution is to be a just procedure satisfying ‘the requirements of equal
liberty; and second, it is to be framed so that of all the just arrangements
which are feasible, it is more likely than any other to result in a just and
effective system of legislation. The justice of the constitution is to be
assessed under both headings in the light of what circumstances permit, these
assessments being made from the standpoint of the Constitutional convention.
What
is essential is that the Constitution should establish equal rights to engage
in public affairs and that measures be taken to maintain the fair value of
these liberties. In a well‑governed State only a small fraction of
persons may devote much of their time to politics. There are many other forms
of human good. But this fraction, whatever its size, will most likely be drawn
more or less equally from all sectors of society. The many communities of
interests and centres of political fife will have their active members who look
after their concerns.
(c)
Reference has also been made by the learned counsel for the parties to the
following observations of Zaffar Hussain Mirza, J. in the case of Miss Bcnazir
Bhutto v. Federation of Pakistan and others (PLD 1988 SC 416), relevant at page
616:‑‑
“The
expression “political justice” is very significant and it has been placed in
the category of fundamental rights. Political parties have become a subject‑matter
of a fundamental right in consonance with the said provision in the Objectives
Resolution. Even otherwise, speaking broadly on the model of Parliamentary form
of representative Government prevalent in United Kingdom. It is also clear from
the Objectives Resolution that principles of democracy as enunciated by Islam
are to be fully observed.”
8.
In my view, the political rights and the political justice are inter linked
with each other. The former encompasses the right to participate directly or
indirectly in the establishment or management of the Government. These rights
ate delineated and demarcated in the Constitution of every country‑,
whereas the latter caters for providing in the Constitution equal ‑rights
to engage and participate in the public affairs. It envisages that the
Constitution should guarantee equal liberty and provide an efficient and honest
machinery/mechanism through which people can elect their representatives in a
manner which should ensure that‑‑
(i) each vote has approximately the same
weight in determining the
outcome of the election;
(ii) people similarly endowed and
motivated should have roughly the same chance of attaining political authority
irrespective of their economic and social class;
the
majority should get into power.
The
Fundamental Rights contained in ‘ our Constitution referred to hereinabove
provided to some extent for the Political Rights and the Political Justice.
However, there is a lot of scope for improving upon and expanding the same
through legislation and the judicial creativity.
9.
1 am inclined to hold that the question whether this Court can entertain the
above petition under Article 184 (3) can be decided in favour of the
petitioner, if I were to hold that the order of dissolution of the Assembly and the dismissal of the
petitioner as the Prime Minister and his Cabinet in any way is violative of
Article 17 of the Constitution or any other Fundamental Rights contained
therein. It may be pertinent to refer to Article 17 of the Constitution, which
reads as follows:‑‑
“17.‑‑(1.)
Every citizen shall have the right to form associations or unions, subject to
any reasonable restrictions imposed by law in the interest of sovereignty or
integrity of Pakistan, public order or morality.
(2) Every citizen, not being in the
service of Pakistan, shall have the right to form or be a member of a political
party, subject to any reasonable restrictions imposed by law in the interest of
the sovereignty or integrity of Pakistan and such law shall provide that where
the Federal Government declares that any political party has been formed or is
operating in a manner prejudicial to the sovereignty or integrity of ,Pakistan,
the Federal Government shall, within fifteen days of suit declaration, refer
the matter to the Supreme Court whose decision on such reference shall be
final.
(3) Every political party
shall account for the source of its funds in
accordance with law.”
A perusal of the above Article
indicates that clause (1) thereof confers on every citizen the right to form
associations or unions, subject to any reasonable restrictions imposed by law
in the interest of sovereignty or integrity of Pakistan, public order or
morality. Whereas, clause (2) confers on every citizen, not being in the
service of Pakistan, the right to form or be a member of a political party,
subject to any reasonable restrictions imposed by law in the interest of the
sovereignty or integrity of Pakistan. It also empowers the Federal Government
to declare that a political party has been formed, or is operating in a manner
prejudicial to the sovereignty or integrity of Pakistan, subject to a reference
to be made within 15 days from such declaration to the Supreme Court whose
decision on such reference is to be, final.
10.
The question in issue is, as to whether the right to form a political party or
to be a member of such a party conferred under above clause (2) of Article 17
terminates upon the formation of a political party or upon becoming a member of
such a party or does it continue up to the stage of contesting election on the
basis of a political party, formation of a Government, if such a party has
acquired majority in the House and to remain in power till the termination of
the Constitutional duration by afflux of time or earlier in terms of the
provisions of the Constitution.
,In this regard, reference may
be made to the case of M iss Benazir
Bhutto (supra), Wherein a direct petition was riled challenging certain
provisions of the Political Parties Act, 1962, which did not permit
participation in elections on party basis. In the above case, the Federation
raised an objection as to the maintainability of the above petitioner directly
before this Court on two grounds. Firstly, that the petitioner was not an
aggrieved party and secondly, for the reason of pendency of three petitions in
the High Courts of Lahore and Sindh, claiming identical relief. On the above
first ground, Muhammad Haleem, CJ. held that:
“If
the framers of the Constitution had intended the proceedings for the
enforcement of the Fundamental Rights to be in a strait‑jacket, then they
would have said so, but not having done that, I would not read any constraint
in it. Article 184 (3) therefore, provides abundant’ scope for the enforcement
of the Fundamental Rights of an individual or a group or class of persons in
the event of their infraction. It would be for the Supreme Court to Jay down
the contours generally in order to regulate the proceedings of group or class
of actions from case to case.”
Whereas,
on the above second ground, the then learned Chief Justice concluded, as under:‑.
“As
to the choice of the forum, it is no doubt correct that ordinarily the forum of
the Court in the lower hierarchy should be invoked but that principle is not
inviolable and genuine exceptions can exist to take it out from that practice
such, as in the present case where there was a denial of justice as a result of
the proceedings being dilatory.
As
the human right norm is higher than the law then any violation and its consequent
enforcement can only be controlled by an inbuilt limitation in the provision
itself. A rule of practice which has received recognition as a principle of law
is not higher than the norm and the machinery for its enforcement, and,
therefore, it cannot control judicial power so as to stultify it until, of
course, the petitioner has herself, in the strict sense, elected to seek her
remedy from a Court of lower hierarchy exercising concurrent jurisdiction which
is not the case here.”
The
learned Chief Justice and his companion Judges, who recorded their separate
opinions had highlighted the importance of political parties in a Parliamentary
form of Government. Suffice it to quote the following passage from Muhammad ‘Haleem,
CJ.’s opinion:‑‑
“Our
Constitution is of the pattern of Parliamentary’ democracy with a Cabinet
system based on party system as essentially it is composed of the
representatives of a party which is in majority .... it is a party system that
converts the results of a Parliamentary election into a Government.”
Act,
1962, which did not ‘ permit the participation in the elections on party basis
were declared as null and void being violative of Article 17(2) of the Constitution.
11. The judgment, which is more
aptly applicable is the case of Mrs. Banazir Bhutto and another v. Federation ‑of
Pakistan and another (PLD 1989 SC 66), which was also a direct petition filed
in this Court under Article 184(3) of the Constitution, challenging section
21(l)(b) of the Representation of the People Act, 1976, which allowed the
allocation of symbol to each individual candidate and not to a party. In the
above report, the Federation had raised an objection to the effect that the
Constitutional petition was not maintainable because no Fundamental Right of an
individual citizen, as such, was in jeopardy and that the freedom to join any
political party remained unaffected. The above objection was overruled on the
basis of the above earlier judgment in the case of Miss Benazir Bhutto v.
Federation of Pakistan and others (PLD
1988
SC 416) (supra), wherein, inter alia, it has been held that “the forming of a
political party necessarily implies the carrying on of all its activities as F
otherwise the formation itself would be of no consequence.” The above provision
of the presentation of the People Act,
namely, section 21 was declared as violative of Fundamental Rights contained in
Article 17(2) of the Constitution inter alia for the following reasons recorded
by Shaflur Ralunan, J. in his opinion:‑‑
“Our
conclusion therefore, is that section 21 of the Act as amended by Ordinances
Nos. 11 ‑and VIII of 1985, is violative of Fundamental Rights contained
in Article 17 (2) of the Constitution in so far as it’ fails to recognise the ‘existence
and participation of the Political Parties in the process of elections,
particularly in the matter of allocation of symbols and is for that reason void
to that extent. Every Political Party is eligible to participate in the
Elections to every seat in the National and the Provincial Assemblies scheduled
to be held on the 16th of November, 1988. The political parties shall be
entitled to avail of the provisions of sub‑rule (2) of rule 9 of the
Rules to seek allotment of any of the prescribed symbols. Both the petitions
are allowed in these terms leaving the parties to bear their own costs. Federal
Government shall pay a fee of Rs.5,000 each to two amicus curiae Mr. Ali Ahmed
Fazeel and Mr. S.M. Zafar.”
It
may be pertinent to point out that in the above case, it was also contended
that Article 17 of the Constitution does not confer any right on a political
party to seek allocation of a symbol‑in the party name and that the
question of allocation of the symbol was covered by the Statutory provision in
the form of section 21 of the Representation of the People Act, 1976, or the
rules framed thereunder. The above contention was repelled. The above argument
was in fact in line with what has been now urged by the learned Attorney‑General,
Mr. Aziz A. Munshi and by Mr. S.M. Zafar in the present case, namely, that the
petitioner had no vested right either to remain as a member of the National
Assembly for a period of five years or to remain as the Prime Minister for the
above period as’no such right can be spelt out from any of the Fundamental
Rights, as the same are subject‑matters of other Constitutional
provisions,
12.
Learned Attorney‑General and Mr. S.M. Zafar have referred to the
following cases in order to contend that the petitioner did not have any vested
right to remain as a member of the National Assembly for a period of five years
and that the termination of the life of the Assembly prior to the expiry of the
period provided under Article 52 does not involve infringement of any
Fundamental Right:
(i) Kh. Ahmad Tariq Rahim v. Federation
of Pakistan (PLD 1991 Lahore
78 (relevant at page 116);
wherein
Muhammad Rafiq Tarar, C.J. (as his Lordship then was) has held that the members
of the dissolved National Assembly could claim no vested right to enjoy full
term of five years when ostensibly they lost confidence of the people on
account of their performance and conduct in the National Assembly.
(ii) Reference by his Excellency the
Governor‑General (PLD 1955 FC 435
(at page 471);.
In
the above case, the Federal Court while answering a reference made by the
Governor‑General observed as follows:‑‑
“It
should not be overlooked that dissolution does not in any way adversely affect
the rights of the members of the Assembly. If their claim that they are in the
Assembly by the consent of the people and as their representative and not
merely because of a statutory provision is good, they can seek re‑election
to the, new Constituent Assembly, there being no disqualification attaching to
them from being chosen as members of that Assembly. If they receive a fresh
electoral mandate, they can return to the Assembly with greater popular
acclamation and thus disprove the allegation that they represent nobody except
themselves.
(iii) State of Rajasthan v. Union of India
(AIR 1977 SC 1361, relevant at page 1402);
in
which Bhagwati, J. speaking for himself and for A.C. Gupta, J. observed that
they were of the view that the threatened dissolution of the Legislative
Assembly did not involve any infraction of the Fundamental Right guaranteed to
the petitioners under Articles 19(l)(0 and 31 and because of that Writ was not
maintainable under Article 32.
(iv)Capt. KanwaIjit Singh v. Union of India
(AIR 1991 Punjab 54, relevant at page
82);
In
the above case, a Full Bench of the Punjab High Court while following the above
Indian Supreme Court’s case held that:
“To
be a member of the Assembly and the mechanism constituting the same is a
statutory right vested by the statute. It cannot be stretched beyond the four
corners of the statute on any equitable ground.”
It
was also held that no provision of the Constitution had been pointed on under
which the life of the Assembly could be extended.
(v) All India Bank Employees’ Association
v. The National Industrial Tribunal,(Bank Disputes) and others (AIR 1962 SC
171, relevant at page 179); in which the Indian Supreme Court while dealing
with Article 19 (1) (c) of the Indian Constitution held that the same does not
extend to concomitant right to effective bargaining or to strike. Ayyangar, J.
while speaking on behalf of the Court also observed that “stream cannot rise
higher than its source”.
13. Whereas, Mr. Khalid
Anwar has referred to the following cases:‑‑
(i) Olga Tellis and others v. Bombay Municipal
Corporation and others (AIR 1986 SC 180); in which the Indian Supreme Court
while construing Article 21 of the Indian Constitution pertaining to the right
of life held that the above Article was to be viewed in conjunction with
Articles 39 (a) and 41 relating to State policy requiring the State to secure
to the citizens an adequate means of livelihood and the right to work, and that
eviction of pavement dwellers and slums will lead to deprivation of their
livelihood and consequently to the deprivation of life or personal liberty in
terms of the above Article.‑ It was further held that though under
section 314 of the Bombay Municipal Corporation Act, 1886, the Commissioner had
the discretion to cause an encroachment to be removed with or without notice,
that discretion is to be exercised in a reasonable manner so as to comply with
the Constitutional mandate. It was also held that the pavement dwellers were
entitled to be heard before they could be removed.
(ii) State of Himachal
Pradesh and another v. Umed Ram Sharma and
others (AIR 1986 SC 847);
In
the above case the judgment of a Division Bench of the High Court was impugned,
whereby the State Government was directed to construct road for providing
access to certain village situated in hilly areas. The Indian Supreme Court
while maintaining the above order with certain clarifications and while
construing Articles 19(l)(d), 21 and 38 (2) has held that every person is
entitled to life as enjoined in Article 21 of the Constitution and every
personhas right under Article 19(l)(d) to move freely throughout the territory
of India. It has been further held that the right to life under Article 21
embraces not only physical existence of life but the quality of life and for
residents of hilly areas, access to road is access to life itself and that,
accordingly, there should be road for communication in reasonable conditions in
view of the above Constitutional imperatives.
A. Sharwani and others v. Government of
Pakistan (1991 SCMR 1041).
In
this matter, several direct petitions under Article 184 (3) of the Constitution
were riled by certain retired civil servants/pensioners and their Association
impugning discriminatory treatment meted out to them in respect of certain
benefits granted to the pensioners on the ground of violation of inter alia
Article 25 of the Constitution. The Federation raised an objection as to the
maintainability of above Constitutional petitions directly in this Court. I in
my opinion (which was adopted as the judgment of the Court), while overruling
the above objection observed as follows:‑‑
“13. Even otherwise, the above proceedings
are in the nature of public interest litigation and, therefore, in order to
advance the cause of justice and public good, the power conferred on this Court
under clause (3) of Article 184 of the Constitution is to be exercised
liberally unfettered with technicalities.”
14. Reference may also be made to the
following cases:‑‑
(i) Muhammad Nur Hussain v. The Province
of East Pakistan and others
(PLD 1959 SC (Pak.) 470);
In
which this Court while dealing with the matter relating to the land acquisition
under the East , Bengal (Emergency) Requisition of Property Act, 1948, and
while construing Item 9 in the Provincial Legislative List of the Constitution
relating to compulsory acquisition of land, observed as Wows as to the rule of
interpretation of a provision of Constitution:‑‑‑
“It
is well recognised that in interpreting a provision of a Constitution the
widest construction on possible in its context should be given according to the
ordinary meaning of the words used, and that each general word should be held
to extend to all ancillary and subsidiary matters.”
(ii) Dwarkadas Shrinivas v. The Sholapur
Spinning & Weaving Co. Ltd.
and other’s (AIR 1954 SC 119).
In
the above case, the Indian Supreme Court while examining vires of an Ordinance
which authorised the deprivation of the property of the company held that the
provisions in the Constitution touching Fundamental Rights must be construed
broadly and liberally in favour of those on whom the rights have been
conferred.
15.
The above cases relied upon by the learned Attorney‑General and Mr. S.M.
War are distinguishable inasmuch as in the above Lahore case (Ahmad Tariq
Rahim), it was held that the Assembly lost the confidence of the people, whereas
in the present case, the position is otherwise. The above Federal Court
judgment upon the Governor‑General’s
reference has also. no application as the judgment was rendered when there was
no fundamental right in the field. The above cases of Indian jurisdiction
referred to by the learned Attorney‑General and Mr. S.M. War are also
distinguishable as the case of the Indian Supreme Court (1977) (State of
Rajasthan) and of the Punjab High Court (1991) Capt. Kanwaijit Singh),
pertained to the dissolution of the States Assemblies under Article 356 of the
Indian Constitution which envisages vesting of the State legislative power in
the Parliament and the, executive power in the President, the case of Indian
Supreme Court 1962 (All India Bank Employees’ Association) relates to the right
to be a collective bargaining agent though there is general observation that
stream cannot rise higher than its source” which may have some bearing on the
controversy in issue.
Whereas
the above cases cited by Mr. Khalid Anwar referred to hereinabove show that
Indian Supreme Court while construing Article 21 of the Indian Constitution
pertaining to the right to life has held that it embraces not only physical
existence of life but the quality of life and for residents of hilly areas,
access to road is access to life itself. Even the pavement dwellers were
considered to have some right. The efforts were to construe the above provision
liberally as to extend its scope. The same approach seems to have been adopted
by this Court in IA. Sharwani and others and Muhammad Nur Hussain (supra)
inasmuch as in the former case, Article 184 (3) of the Constitution was given
liberal construction unfettered with technicalities, whereas in the latter ‘case,
it has been held that while interpreting ‑a provision of the Constitution
the widest construction possible in the context be given and that each general
word should be construed in such a way that it should extend to all ancillary
and subsidiary matters.
16.
1 am inclined to hold that the right to form a political party and to be a
member of a political party enshrined in clause (2) of Article 17 does not
culminate upon winning of the elections as was contended by the learned
Attorney-General and Mr. S.M. Zafar but it is a continuous political process
which includes the right of the petitioner to remain as a member of the
National Assembly or as a Prime Minister till the time the life of the Assembly
S or the tenure of *the Prime Ministership is terminated lawfully in accordance
with the provisions of the Constitution. It is true that nobody can claim any
vested right to remain a member of. the National Assembly or to be a Prime
Minister for the period of five years but an MNA or a Prime Minister can claim
that he should be allowed to function so long as the life of the Assembly or
his tenure is not terminated in accordance with the provisions of the
Constitution. Any infraction of the above right without legal basis will inter
alia attract Article 17 (2) of the Constitution besides being violative of the,
relevant Constitutional or statutory provision. Since the majority, including
me, has held that the impugned order of 18th April, 1993, does not fall within
the ambits or Article 58 (2) (b) of the Constitution, the termination of the
life of the %7 Assembly and the tenure of the petitioner as the Prime Minister
besides being violative of the above provision of the Constitution will . also
attract I Article 17(2) of the Constitution, as admittedly the petitioner was
the leader of a political party which commanded the majority in the National
Assembly.
17.
. I may also observe that there is a. ‘Marked distinction between interpreting
a Constitutional provision containing a Fundamental Right and a provision of an
ordinary statute. A Constitutional provision containing Fundamental Right is a
permanent provision intended to cater for all time to come and, therefore,
while interpreting such a provision the approach of the Court should be
dynamic, progressive and liberal keeping in view ideals of the people, socio‑economic
and politico‑cultural values (which in Pakistan are enshrined in the
Objectives Resolution) so as to extend the benefit of the same to the maximum
possible. This is also called judicial activism or judicial creativity. In
other words, the role of the Courts is to expand the scope of such a provision
and not to extenuate the same. The construction placed by me on Article 17 of
the Constitution hereinabove in para. 16, seems to be in consonance with the
above rules of construction.
18.
Before concluding the above discussion on the above controversy, I may also
observe that Mr. Maqbool Elahi Malik, learned Advocate‑General, Punjab,
has invited our attention to the following observation made by me in the case
of Federation of Pakistan through Secretary, Ministry of Law, Justice and
Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and
others (PLD 1992 SC 723) and contended that the tenor of the said observation
seems to be that a petition under Article 184 (3) of the Constitution directly
to this Court is not competent:‑‑
“The
above contention is not without force, but at the same time, I cannot overlook
the fact that the electorates who are the real sovereigns in a democratic set‑up,
have expressed their will. The newly‑elected Assembly and the new Cabinet
have been functioning for the last about a year. Neither the M.P.As. of the new
Assembly nor the Ministers and Advisors of the new Provincial Ministry are
before us. Neither they have been impleaded as parties nor any notice has been
issued to them. It would, therefore, be not just and fait to condemn them
unheard. It is true that in terms of clause (5) of Article 48 of the
Constitution, election of a dissolved Assembly is to take place within 90 days
and by the time the controversy as to the legality of an order of dissolving an
Assembly can be finally adjudicated upon by this Court, quite considerable
period may elapse in the meantime the’ elections may take place and a new Minis
‘ try may be inducted. In my humble view, the above difficulty is to be
resolved by the law‑makers by providing an appropriate provision in the
Constitution. Since this Court has held that an order of dissolving an Assembly
is justiciable, the question, whether a particular order of dissolving an
Assembly is legal or illegal, should be adjudicated upon before holding fresh
elections. If a criminal case by virtue of a Constitutional amendment is
required to be decided within 30 days by a trial Court or appeal arising
therefore a provision can be incorporated in the Constitution providing a
direct Petition to the Supreme Court against an order of dissolving an
Assembly, with the mandate that the same should be decided within 30 days from
the date of its presentation, which should be presented within 7 days from the
date of dissolution.
The above contention is devoid
of any force, as the question, whether a direct petition under Article 184 (3)
of the Constitution before this Court was competent or not, was not in issue in
the above report but an appeal with –the leave of the Court was riled against
the judgment of the Peshawar High Court, whereby the Governor’s order of
dissolving of the Provincial Assembly of N.‑W.F.P. and dismissing the
Cabinet including the Chief Minister was set aside and both were restored.
Since I was maintaining the above High Court judgment with the modification
relating to the relief of restoration of the Assembly and the Cabinet for the
reasons recorded in the above‑quoted extract of my ‘opinion, I had
suggested that a direct petition to this Court
against an order of dissolving am Assembly be provided in the
Constitution with the mandate to decide the same within 30 days but the above
suggestion does not imply that I had held that a direct petition under Article
184 (3) of the Constitution could not be riled if a petitioner could
demonstrate any infraction of any of the Fundamental Rights.
In
this view of the matter, the above
preliminary objection fails.
19.
At this juncture before touching upon the grounds of dissolution order on
merits, it may be pertinent to take up two legal points raised by Dr. Farooq
Hasan, namely:‑‑
since
the Speaker ha d summoned the
National Assembly for 19‑4‑1993 a requisition under Article 54‑
(3) if the Constitution, the same upon could have been prorogued by the Speaker
only in view of the language employed in the above clause (3) of Article 54 and
therefore, the President was not competent to press into service Article
58(2)(b) of the Constitution and, hence, the impugned order is illegal’ and
without jurisdiction;
(ii) that
Article 58(2)(b) of the Constitution lays down two preconditions before the
National Assembly can be dissolved‑‑
(a)
‑ a situation has arisen in which the Government of the Federation cannot
be carried on in accordance with the provisions of the Constitution; and
(b) an appeal to the electorate is
necessary.
According to Dr. Farooq Hasan,
the President has not addressed to himself
to the, above second requirement before the passing of the impugned order
nor this Court attended to the above aspect in the earlier judgments in the
case of Haji Saifullah (PLD 1989 SC 166) and in the case of Ahmad Tariq Rahim
(PLD 1992 SC 646).
20.
As regards the above first contention, it may be‑pertinent to observe that the power to prorogue is
entirely distinct from the power to dissolve and, therefore, the factum’ that
under clause (3) of Article 54 once the Speaker summons the National
Assembly upon requisition signed by not less than one fourth of the total
membership of the National Assembly, he can only prorogue and not any other
authority, does not, in any way, control or curtail the power conferred on the
President under clause (2)(b) of Article 58 of the Constitution. If the ‑National
Assembly can be dissolved while in session, there seems to be no legal basis as
to why it cannot be dissolved when it is not in session but is summoned upon
requisition under clause (3) of Article 54 of the Constitution.
Mr.
S. M. Zafar has invited our attention to the following observation from the
treatise on the ‘Theory and Practice of Dissolution of Parliament’ compiled by
Cambridge Studies in International and Comparative Law, edited
by
CJ. Hamson and R.Y. Jennings:‑‑
“Once
Parliament has been formally opened, if can be dissolved whether it is in
session or not.”
The
above observation seems to be in consonance with the view which am inclined to
take. I
21.
Adverting to the above second legal submission, it may be pertinent to quote
Article 58 of the Constitution, which reads as follows:‑‑
“58.‑‑(l)
The President shall dissolve the National Assembly if so advised by the Prime
Minister; and the National Assembly shall, unless sooner dissolved, stand
dissolved at the expiration of forty‑eight hours after the Prime Minister
has so advised.
Explanation
.‑‑Reference in this
Article to “Prime Minister” shall not be construed to include reference to a
Prime Minister against whom a notice of a resolution for a vote of non‑confidence
has been given in the National Assembly but has not been voted upon or against
whom such a resolution has been passed or who is continuing in office after his
resignation or. after the dissolution of the National Assembly.
(2) Notwithstanding anything contained in
clause (2) of Article 48, the President may also dissolve the National Assembly
in his discretion where, in his opinion,‑‑
(a) a vote of no‑confidence having
been passed against the Prime Minister, no other member of the National
Assembly is likely to command the confidence of the majority of the members of
the National Assembly in accordance with the provisions of the Constitution, as
ascertained in a session of the National Assembly summoned for the purpose; or
(b) a situation has arisen in which the
Government of the Federation cannot be carried on in accordance with the
provisions of the Constitution and an appeal to the electorate is necessary.”
A
perusal of the above‑quoted Article shows that under clause (1), it is
mandatory on the part of the President to dissolve the National Assembly if so
advised by the Prime Minister and unless sooner dissolved, it shall stand
dissolved automatically at the expiration of forty‑eight hours after the
Prime Minister has so advised. However, explanation to the above clause puts
clog on the above right of the Prime Minister by providing that he cannot
tender above advice if notice of a resolution for a vote of no‑confidence
has been given against him.
It
may further be noticed that clause (2) provides that notwithstanding anything
contained in clause (2) of Article 48 of the Constitution, the President may
dissolve the National Assembly in his discretion where in his opinion‑‑
(a) a vote of no‑confidence has
been passed against the Prime Minister and in the opinion of the President no
other member of the National. Assembly is likely to command the confidence of
the majority of the members;
(b) the President may also dissolve in
his discretion when in his opinion a situation has arisen in which the
Government of the. Federation cannot be carried on in accordance with the
provisions of the Constitution and an appeal to the electorate is necessary.
22.
The above sub‑clause (b) of clause (2) of Article 58 of the Constitution
is pertinent to the point in issue. In my opinion, once the President forms the
opinion objectively on the question that a situation has arisen in which the
Government of the Federation cannot be carried on in accordance with the
provisions of the Constitution on the ‑basis of the material having nexus
with the above, reason, he enters into the domain of discretion and it is for
him to decide, as to whether the proper action would be the’ dissolution of the
Assembly or some other action warranted by some other provisions of the
Constitution or law. This question had come up for consideration before this
Court in the case of Ahmad Tariq Rahim (supra), wherein Shaflur Rahman, J.
speaking on behalf of the majority concluded as follows:‑‑
“There are three general arguments advanced by the learned counsel for
petitioner which need attention at this stage before taking up the specifics.
The first was that there were available to the President other alternative
Constitutional remedies before resorting to this or such a drastic step. In
advancing this argument a misconception with regard to the Constitutional
powers enjoyed by the President in his discretion and by the Prime Minister has
been exhibited. All the alternative powers referred to are exercisable by the
President only on the advice of the Prime Minister and not in his discretion. It
is not for the President to seek advice ‘of the Prime Minister and to obtain
one. Nor is it open to the Courts to examine what advice, if any, was given and
how it was received: None of the powers, be it under Article 186 (1), or
Article 233(l) or Article 184(l) of the Constitution or even section 131‑A
of the Criminal Procedure Code is exercisable by the President in his
discretion. So there are no alternative remedies available to ‑the
President but these alternative remedies. are available to the Prime Minister.”
Even otherwise the object of dissolving the Assembly in its essence is
an appeal from the‑legal to the political sovereign as highlighted by
Dicey *in his. celebrated book “Introduction
to the Study of the Law of the Constitution”,
Tenth Edition, wherein he commented upon the above aspect as under:‑‑
“But the’ reason why the House can in accordance with the Constitution
be deprived of power and of existence is that an occasion has arisen on which
there is fair reason to suppose that the opinion of the House is not the
opinion of the electors. A dissolution is in its essence an appeal from the
legal to the, political sovereign. A dissolution is allowable., or necessary,
whenever the wishes of the legislature are, or may fairly be presumed to be,
different from the wishes of the nation.
This is the doctrine established by the celebrated contests of 1784 and
of 1834. In each instance the King dismissed a Ministry which commanded the
confidence of the House of Commons. In each case there was an appeal to the
country by means of a dissolution. In 1784 the appeal resulted in a decisive
verdict in favour of Pitt and his colleagues, who had been brought into office
by the King against the will of the House of Commons. In 1834 the appeal led to
a verdict equally decisive, against Pitt and
In my opinion, the dissolution of an Assembly is inter linked with an
appeal to the electorate. If an Assembly is to be dissolved as a corollary, an
appeal to the electorate is to be made. I am inclined to hold that we will be
entering into the domain of speculations, surmises and conjectures if we were
to examine the question, whether an appeal to the electorate will achieve the
desired result which is not warranted by the language employed in the above
provision of the Constitution. ‑One cannot predict with certainty, what
would be the outcome of an appeal to the electorate.
23. 1 may now deal with the merits of the grounds. Both the parties
were in agreement that the law as enunciated as to the scope of sub‑clause
(b) of. clause (2) of Article 58 of the Constitution by this Court in its
judgment in the case of Haji Muhammad Saifullah Khan (supra), Ahmad Tariq Rahim
(supra) and the case Federation of Pakistan v. Aftab Ahmad Khan Sherpao (supra)
is the correct law, which will govern the present case as well. In this
connection, it may be pertinent to quote the relevant passages on the
interpretation of the expression “situation has arisen in which the Government
cannot be carried on in accordance with the provisions of the Constitution”
employed in above subclause (b) of clause (2) of Article 58 of the
Constitution, given in the first case of Haji Muhammad Saifullah:‑‑
Nasim Hasan Shah, J. (as his Lordship then was).‑‑‑Thus
the intention of the law‑makers, as evidenced from their speeches and the
terms in which the law was enacted, shows that any order of dissolution by he
President can be passed and an appeal to the electorate made only I when
the machinery of the Government has broken down
its authority eroded and the Government cannot be carried on in
accordance with the provisions of the Constitution.
Shaflur Rahman, J.‑‑The expression ‘cannot be carried on’
sandwiched as it is between ‘Federal Government’ and ‘in accordance with the
provisions of the Constitution’, acquires a very potent, a very positive and a
very concrete content. Nothing has been left to surmises, likes or dislikes, opinion
or view. It does not concern itself with the pace of progress, the shade of the
quality or the degree of the performance or the quantum of the achievement. it
concerns itself with the breakdown of the Constitutional mechanism, a
stalemate, a deadlock in ensuring the observance of the provisions of the
Constitution.”
I may
also refer to the following construction placed by me on the above expression
in the case of Federation of Pakistan v. Aftab Amaani Sherpao (supra):‑‑
“The words ‘that a situation has arisen in which the Government of
the Province cannot be carried on in
accordance with the provisions of
Constitution’ are of wide import. If a Government, in order to remain in
power, has to purchase the loyalties of the M.P.As. by allotting plots or
granting other benefits in cash or kind at the cost of the public exchequer
and/or is to induct them as Ministers and Advisors for the above purpose, in my
humble view, it cannot be said that the Government is being carried on in
accordance with the provisions of the Constitution.”
24. The line of
arguments adopted by Mr. S.M. War was that the dissolution of an Assembly in a
democratic s ‘ et‑up‑,is a normal incident which in fact advances
the cause of democracy by getting fresh mandate from the political sovereign.
In this regard, he has referred to the book under the caption “Inter‑Parliamentary
Union” Parliaments of the World (A Reference Compendium) by Valentine Herman
with the collaboration of Francoise Mendal and the Theory and Practice of
Dissolution of Parliaments, a comparative study with special reference to the
table indicating the dissolution of the Parliament through various
modes which
includes 12 at the initiates of the Head of the State:‑‑
“Circumstances
Number of Countries.”
At initiative of 12
Head of State
When Government loses its majority through
changes in the Political
composition of Parliament. 3
When vote of censure or no confidence passed
against the Government
9
When two Houses disagree
4
At request of Prime Minister 14
Automatic dissolution associated with
Constitutional changes,
4
At initiative of Parliament 9
Whereas the tables given in the latter book, reflect dissolution of
Parliaments in
“The constitutionality therefore of the dissolution in 1834 turns at
bottom upon the still disputable question of fact, whether the King and his
advisors had reasonable ground for supposing that the reformed House of
Commons had lost the confidence of the nation. Whatever may be the answer given
by historians to this inquiry, the precedents of 1784 and 1834 are decisive;
they determine the principle on which the prerogative of dissolution ought to
be exercised, and show that in modern times the rules as to the dissolution of
Parliament are, like other conventions of the Constitution, intended to secure
the ultimate supremacy of the electorate as the true political sovereign of the
State; that, in short, the validity of Constitutional maxims is subordinate and
subservient to the fundamental principle of popular sovereignty.
The necessity for dissolution stands in close connection with the
existence of Parliamentary sovereignty.”
Indeed holding of a general election regularly in a democratic setup/polity
is an essential element. It inculcates political maturity among the masses,
brings political stability in the democratic institutions and gives the masses
sense of participation, in the affairs of the State and generates in them sense
of responsibility and patriotism. But frequent dissolution of an Assembly
without justifiable reason affects adversely the above democratic process,
which results into instability in the country adversely affecting growth.
25. Mr. Yahya Bakhtiar who also appeared for the petitioner adopted
somewhat different line of arguments than Mr. Khalid Anwar by urging that under
the Preamble of the original Constitution. which has now become substantive
part of the Constitution by incorporating Article 2A, the sovereignty over the
entire Universe belongs to Almighty Allah alone and the authority to be
exercised within the limits prescribed by Him is a sacred trust. According to
him sub‑clause (b) of clause (2) of Article 58 of the Constitution is
repugnant to the above basic Islamic concept Of sovereignty and that no person
how so high he may be Placed can be vested with the power to destroy the chosen
representatives of the people through an executive order, as under the above
Preamble, the State is to exercise its power and authority through the chosen
representatives of the people. To reinforce his above submission, he has
invited our attention to the speech made by the Founder of the Nation Ouaid‑i‑Azam
Muhammad Ali Jinnah in 1948 at Quetta’ He has particularly invited our
attention to the following concluding para. of the speech:‑‑
“in proposing this scheme, I have had one underlying principle in mind,
the principle of Muslim democracy. It is my belief that our salvation lies in
following the golden rules of conduct set for us by our great law‑giver,
the Prophet of Islam. Let us lay the foundation of our democracy on the basis
of truly Islamic ideals and principles. God Almighty has taught us that ‘our
decisions in the affairs of the State shall be guided by discussions and
consultations’. I wish you, my brethren of Balochistan, God speed and all
success in the opening of this new era. May your future be as bright as I have
always prayed for and wished it to be. May you all prosper!”
He has also invited our attention to a passage from the treatise under
the caption “Islamic Jurisprudence and International Perspective by C.G.
Weeramantry, where the author has following observations:‑‑
“The Islamic position of subornation of the sovereign to God and his
law comes through strongly in the following Qur’anic passage: ‘Say: 0 God, Lord
of Sovereignty! Thou gavest sovereignty to whom Thou pleasest. Thou exaltest
whom Thou pleasest and absest whom Thou pleascst. In Thy hand is all good for
Thou has power over all things. (Qur’an, 111:26). For a discussion of
sovereignty, see Asad (1980b), pp. 37 ff.
A ruler invested with sovereignty in the Hobbesian or Austinian sense
was unthinkable at any stage in the history of Islamic law. Locke did indeed
place limitations upon the ruler but this was in consequences of a man‑made
social power…………………………………………………………………………………………………………………………………………………………………………..
The governance of the Unimah (the Muslim community) thus depended upon
the principle of consultation (Shura) and no ruler was free of this obligation
(see Qur’an XLII: 38).”
On the above basis, his submission was that not only the impugned order
but also the above provision of Article 58 (2) (b) of the Constitution is
violative of the above Islamic concept of sovereignty. There seems to be marked
distinction between the Islamic concept of sovereignty and the modern concept
of sovereignty enunciated by the various celebrated authors/scholars. However,
it will suffice to observe that the effect of incorporation of the preamble as
a substantive part of the Constitution has been considered by a Full Bench of
this Court in the case of Hakim Khan and 3 others (supra) referred to
hereinabove in para. 4. The above broader proposition of law now urged by Mr.
Yahya Bakhtiar can be examined in an appropriate case at the appropriate time.
26. 1 may now deal with the grounds of the impugned order. It may be
advantageous to reproduce the opening para. and sub‑para. (a) of the
same, which read as follows:‑‑
“The President having considered the situation in the country, the
events that have taken place and the circumstances, the contents and
consequences of the Prime Minister’s speech on 17th April, 1993 and among
others for the reasons mentioned below is of the opinion that the Government of
the Federation cannot be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary:‑‑
(a) The mass resignation of
the members of the Opposition and of considerable numbers from the Treasury
Benches, including several Ministers, inter alia, showing their desire to seek
fresh mandate from the people have resulted in the Government of the Federation
and the National Assembly losing the confidence of the people, and that the
dissension therein, has‑nullified its mandate.”
In the above opening para. inter alia reference to the Prime Minister’s
speech of 17‑4‑1993 has been made, which I intend to deal with
alongwith ground ‘b’. The above ground ‘a’‑ speaks of mass resignation of
the members of the Opposition and of considerable numbers from the Treasury
Benches including several Ministers showing their desire to seek fresh mandate.
On the basis of the above, it has been concluded that the National Assembly has
lost the confidence of the people and that the dissension therein had nullified
its mandate. From the record, it seems that the President received 88
resignations addressed to the Speaker from the M.N.As./Ministers out of the
House of 217. 12 MQM members had resigned earlier about more than a year back.
One of the members, namely, Mr’. Muhammad Khan Junejo expired; thus the total
comes to 101. It may be observed that most of the resignations out of 88
received by the President are undated. Some are in identical language in the
same handwriting. It is also not indicated as to when they were handed over and
by whom. However, the newspaper clippings pertaining to the period preceding to
the date of dissolution order indicate that some of the leaders of the
Opposition were collecting resignations from MNAs besides one of the Governors
of the Province. The daily English newspaper “Nation” in its publication of 3‑4‑1993
published a statement of Mr. Mir Balakh Sher Mazari, M.NA. who had allegedly
stated that more than 80 members of the National Assembly including those of
the P.DA. were ready to resign whenever President Ghulam Ishaq Khan asks them
to do so. Incidentally, it may be stated that Mr. Mir Balakh Sher Mazari was
appointed as the Care‑taker Prime Minister after the passing of the
impugned dissolution order. Be that as it may, the question which requires
consideration is, whether the submission of the above resignations to the
President for the purpose of ousting a Government which commanded the majority
in the National Assembly could be a ground for invoking sub‑clause (b) of
clause (2) of Article 58 of the Constitution. In this behalf, it may be
pertinent to refer to clause (1) of Article 64 of the Constitution, which
provides that a member of Majlis‑eShoora (Parliament) may by writing
under his hand addressed to the Speaker or, as the case may be, the Chairman,
resign his seat and thereupon his seat shall become vacant. In the case of Mr.
AX Fazlul Quader Chaudhry v. Shahnawaz and others (PLD 1966 SC 105), this Court
while construing Article 107 (a) of the late Constitution of Pakistan, 1962,
containing more or less identical provisions held that communication of
resignation to the Speaker is an essential ingredient of the application of
above Article 107 of the late Constitution and in the absence of any such
communication, the resignation is of no effect.
The same view was taken in a‑ subsequent judgment of this Court
in the case of Mirza Tahir Beg v. Syed Kausar Ali Shah and others (PLD 1976 SC
504), in which this Court while dilating upon Article 64 read with Article 127
of the Constitution relating to resignation of an M.P.A. held that:
“If on the other hand the resignation is not presented personally, but
is sent through a messenger, as in the instant case, then Speaker will have to
further satisfy himself that the transmission is by an authorized person. The
resignation could not have taken effect unless it was voluntary and intended to
reach the Speaker in a manner chosen by the appellant himself. There is nothing
whatever, to show that the Speaker had satisfied himself about either of two
conditions, and therefore failed to do what he was required by law and the
Constitution.”
27. In para. 3 (iii) of the written statement dated 2‑5‑1993
riled on behalf of the Federation of Pakistan, the following averments as to
the submission of resignations ‘to the President instead of to the Speaker were
made:‑‑
“3(iii). Contents of para. 3 (iii) are misleading and incorrect.
It is submitted that it is for the members of the National Assembly to
select the mode of showing their protest and lack of confidence in the
petitioner’s Government, National Assembly and the Speaker whether in or
outside the House. In the instant case they have addressed their resignations
(Annex A‑1) to the Speaker of the National Assembly, but sent them to the
President to register with the Head of the State their protest and as an
expression of lack of confidence in the National Assembly, the Speaker and the Federal
Government. The further reason was that the Speaker had not in the past acted
upon any motion directed against the Prime. Minister/or any other Minister or
member of the National Assembly supporting the Government or the
Government itself and, as widely known the concerned members had shown
lack of confidence in the Speaker, who according to the general perception was
in collusion with the former Prime Minister and was not acting independently
(Annex‑N). Speaker was getting preferential and special treatment in
special allocation of funds for his
Constituency (Annexes. ‑1,
N‑2, N‑3). As the Speaker conduct was objectionable and open to
question, the concerned MNAs. sent their resignations to the President so that
their protest etc. expression of lack of confidence be properly registered. The
circumstances, background and the factors responsible for the handing over of
the
resignations by the Members to the President arc as above. It
demonstrated that the said Members had lost confidence in the National
Assembly, the Federal Government and the Speaker, and that the mandate had been
nullified. It is further submitted that the
Speaker has to receive resignations only for the purpose of creating a
vacancy and consequent by‑elections. The circumstances in which the
resignations were handed over to the President, have been mentioned above and
the President could form his opinion in that behalf. Rest of the contentions
are repelled.”
Mr. Aziz A. Munshi,
learned Attorncy‑Gencral, while arguing the above point on 15‑5‑1993 in the morning session
adhered to the pleas contained in the above‑quoted para. of the written
statement and contended that the above resignations were intended as protest
and were not to be acted upon as resignations. However, after tea break, he
deviated from the above pleading and his earlier submission and urged that
factually the resignations were intended to the resignations and they were also
meant as protests. He
also filed a written statement on the above point on the following day.
Alongwith it he also enclosed statistics indicating the percentage of valid
votes cast originally in 1990 General Election and the position on 18‑5‑1993
after the submission of the resignations by the M.Q.M. members and above 88
M.N.As, which read as follows:‑‑
“Statement
The resignations were submitted by responsible members of the National
Assembly including the Leader of the Opposition, the former Prime Minister and
Mr. Ghulani Mustafa Jatoi and they were meant to be resignations as well as
protests. The President in normal course could have forwarded them to the ‑Speaker,
and under the Constitution and Rules of the National Assembly the vacancies
would have inevitably occurred.
The President was not bound to wait as under Article 58 (2) (b) the words
used are “cannot” which is different than “is not”. The President could have
formed an opinion by the result of the vacancies that would occur that “the
Government of the Federation could not be run in accordance with the
Constitution”; and that the Assembly had lost the mandate.
Original Position
(Percentage or valid votes cast.)
IJI
37.37%
PDA
36.83%
Haq Prasat 5.54%
JUI(f)
2.94%
Others
17.32%
Position on 18‑5‑1993
(Percentage of valid votes cast)
IJI(minus JI)
28.15%
JI
2.23%
PDA
36.92%
JUI(F)
2.94%
PML(Q)
.04%
JWP
0.61%
JUP(N)
1.47%
PKMP
0.35%
ANP(H)
1.68%
PML (J)
7.00%
TI ---
NDA
----
Others less Haq Parast 13.16%
Grand Total:
94.46%
28. According to the learned Attorney‑General, on 18‑5‑1993
M.N.As. of IJI minus JI were representing only 28.15% of the total valid votes
cast in 1990 election. On the above basis his submission was that the National
Assembly lost its representative character warranting action under sub‑clause
(b) Pf clause (2) of Article 58 of the Constitution.
Even if I were to ignore the above pleading of the Federation and allow
the learned Attorney‑General to deviate from it, the fact remains that
the submission of above 88 resignations to the President had no legal effect as
they 0 were not handed over to the Speaker in terms of Clause (1) of Article 64
of the Constitution, in view of the above two judgments of this Court. The
object of submission of the above resignations to the President was to get the
petitioner’s Government ousted and in order to achieve the above object, the
Assembly was to be dissolved. In my view, the above object is foreign to the
ground mentioned in sub‑clause (b) of clause (2) of Article 58 of the
Constitution as the factum that 88 MNAs had submitted resignations to the
President instead of the Speaker, would not show that the Assembly lost the
mandate of the people or that a situation had arisen in which the ‘Federation
could not be carried on in accordance with the provisions *of the Constitution.
In Ahmad Tariq Rahim’s case (supra), it was held that the Assembly had lost its
representative character because of defections, which ground was not factually
contested (see PLD 1962 SC 666). There is no allegation of defections or horse‑trading
in the impugned order. I am also not impressed by the learned Attorney‑General’s
submission that on 18‑5‑1993, IJI MNAs minus JI represented only
28.15% of the total valid votes cast in 1990 General Elections. The above
calculation is highly speculative and cannot ‘be made basis for pressing into
service the above provision of sub‑clause (b) of clause (2) of Article 58
of the Constitution. In our country, we do not have two parties system but
there is no limit as to the number of political parties which may participate
in a General Election. In such a situation, a party having majority may not
have secured even 30% of votes cast but as the Constitution stands, this does
not, in any way, affect the right of such a party to form the Government and to
run the same for a full period of rive years.
I am inclined to hold that what cannot be achieved directly cannot be
achieved indirectly by pressing into service sub‑clause (b) of clause (2)
of Article 58 of ‑the Constitution. In this regard, it may be pertinent
to mention Lhat Under clause (5) of Article 91 of the Constitution. it has been
provided that the Prime Minister
shall hold the office during the pleasure of the President but this pleasure is
controlled by providing therein that the President shall not withdraw his
pleasure under this clause unless he is satisfied that the Prime Minister does
not command the confidence of majority of the members of the National Assembly,
in which case he shall summon the National Assembly and require the Prime
Minister to obtain a vote of confidence from the Assembly. If the Prime
Minister fails to obtain a vote of confidence, the President is entitled to
withdraw his pleasure by dismissing the Cabinet and the Prime Minister.
Reference may also be made to clause (1) of Article 95 of the Constitution
which provides that a resolution for. a vote of no‑confidence moved by
not less than 20 per centurn of the total membership of the National Assembly
may be passed against the Prime Minister by the National Assembly. Whereas sub‑clause
(a) of clause (2) of Article 58 of the Constitution empowers the President to
dissolve the Assembly in his discretion if a vote of no‑confidence having
been passed against the Prime Minister, and no other member of the National
Assembly is likely to command the confidence of the majority of the members of
the National Assembly. This is to be read with clause (5) of Article 48 which
empowers the President upon dissolving the National Assembly either under sub‑clause
(a) or sub‑clause (b) of Clause (2) of Article 58 of the Constitution to‑‑
(a) appoint a date not less
than 90 days from the date of dissolution for
holding of General
Elections to the Assembly; and
(b) appoint a Care‑taker
Cabinet which includes Prime Minister.
There seems to be no other provision under the Constitution, whereby a
Prime Minister commanding majority of the House can be removed or dismissed. I
am, therefore, of the view that the facturn that 88 MNAs had submitted
resignations with the above object had no nexus with the ground mentioned in
sub‑clause (b) of clause (2) of Article 58 of the Constitution. Even if
the above 88 resignations would have been submitted to the Speaker, that would
not have been sufficient to conclude that the situation had arisen in which the
Government of the Federation could not be carried on in accordance with the
provisions of the Constitution as the law provides the requisite provision for
bye‑elections for filling in such vacancies.
29. The persons desirous to achieve the ouster of a Government
commanding majority in the National Assembly cannot be allowed to achieve the
above object by adopting the above mechanism instead of defeating the
Government through no‑confidence votes. The intention of the above MNAs
to submit their resignations was to oust the Government which commanded
majority and to get into power through this indirect means, which fact stands
established from the facturn that Mr. Mir Balakh Sher Mazari was inducted as
the Care‑taker Prime Minister and the Ministers who had resigned from the
petitioner’s Cabinet were taken as the Care‑taker Ministers besides
taking majority of the MNAs who submitted their resignations as Care‑taker
Ministers in the Care‑taker cabinet. In this view, of the above ground is not sustainable;,
Both the parties have referred to the case of Adegb*o v. Akintolame and
another (1963) 5 All ER 544) in which the Premier of W stern Nigeria
(respondent No.1) was dismissed by the Governor pursuant to the power contained
under section 33 (10) of the Constitution of the Federation of Nigeria after
receiving a representation from 66 members of the House of Assembly out of
total 124 members stating therein that they Were no longer supporting
respondent No.i. After the above removal, of respondent No.1 the appellant was
appointed as the Care‑taker Premier’ The Federal Supreme Court upon
respondent No.1’s petition declared the above Governor’s order as illegal and
ordered his reinstatement. Thereupon, an appeal was riled before the Privy Council,
which was allowed, It may be pertinent to reproduce subsection (10) of section
37 of the Nigerian Constitution, which reads as follows:‑‑
“(10). Subject to the provisions of subsections (8) and (9) of this
section, the Ministers of the Government of the Region shall hold office during
the Governor’s pleasure: Provided that‑‑(a) the Governor shall not
remove the Premier from office unless it appears to him that the Premier no
longer commands the support of a majority of the members of the House of Assembly;
and, (b) the Governor shall not remove a Minister other than the Premier from
office except in ‘accordance with those advice of the Premier.”
The Privy Council, while dealing upon the above controversy, repelled
respondent No. Ys, contention that the Governor can not have exercised the
above power without getting the votes cast in the and held as follows:‑‑
“The difficulty of limiting the statutory power of the Governor in
this that the limitation is not to be
found in the words in which the way decided to record the description of makers
of the. Constitution have his powers.
By the words they have empowered in their formula ‘it appears to him’, the judgment as to the
support enjoyed by a Premier is left to the Governor’s own assessment, and, there
is no limitation as to the material on which he ‑is to base his judgment
or the contacts to which he may resort for the purpose. There would have been
no difficulty at all in so limiting him, if it had been intended to do so. For
instance, he might have been given power to list only after the assigning of a resolution of the House ‘that
it has no‑confidence in the Government of the Region’, the very please
employed in an adjoining section of the Constitution (see section 31(4),
proviso (b) to delimit the Governor’s
power of dissolving the House even without the Premier’s advice. According to
any ordinary rule of construction weight must be given to the fact that the
Governor’s power of removal is not limited in such,.‑precise terms as
would confine his judgment to the actual proceedings of the House, unless there
are compulsive reasons, to be found in the’ context of the Constitution or to
be reduce from. obvious general principles, that would impose the more limited
meaning for which the respondent contends.”
The above judgment is distinguishable from the facts of the present case as the language
employed in sub‑clause (4) of clause (2) of Article 58 of the ‘Constitution
is different :from the language used in, above‑quoted section 37(10) of
the Constitution of Western Nigeria inasmuch’ as ‑the prescribed
conditions therein for exercising the power are different. In the former
provisions, it is the breakdown of the Constitutional machinery which is the
determining factor and not the factum, whether the Prime Minister lost the
confidence of the House for which there are separate provisions as pointed out
hereinabove, namely, clause (5) of Article 91 of the Constitution and clause
(1) of Article 95 of the Constitution; whereas under the latter provision, the
criterion is, whether the Prime Minister lost the confidence of the majority in
the House.
However, the observation of the Privy Council that in presence of a
written Constitution, the British Constitutional history as to the power of the
sovereign to dismiss a Prime Minister or other parliamentary practices cannot
be pressed into service, is equally applicable to the present case. The above
relevant observation reads as follows:‑‑ 1
“The first is that British constitutional history does not offer any
but a general negative guide as to the circumstances in which a sovereign can
dismiss a Prime Minister. Since the principles which are accepted today began
to take shape with the passing of the Reform Bill of 1832, no British Sovereign
has in fact dismissed or removed a Prime Minister, even allowing for the
ambiguous exchanges which took place between William IV and. Lords Melbourne in
1834. Discussion of constitutional doctrine bearing on a Prime Minister’s loss ‑of
support in the House of Consigns concentrates therefore on a Prime Minister’s
duty to ask for liberty to resign or for a dissolution, rather than on the
Sovereign’s right of removal, an exercise of which is not treated a s being
within the scope of practical politics. In this state of affairs it is vain to
look to British precedent for guidance on the circumstances in which or the
evidential material on which a Prime Minister can be dismissed, where dismissal
is an actual possibility and the right of removal which is explicitly
recognised in the Nigerian Constitution must be interpreted according to the
wording of its down limitations which that wording does not import.”
30. I may refer to the ground ‘b’ of the dissolution order, which reads
as follows:‑
(b)The Prim( Minister held meetings with the President in March and
April and the last on 14th April, 1993 when the President urged him to take
positive steps to resolve the grave internal and. international problems
confronting the country and the nation was anxiously looking forward to the
announcement of concrete measures by the Government to improve the situation.
Instead, the Prime Minister in his speech on 17th April, 1993 chose to divert
the people’s attention by making false and malicious allegations against the
President of Pakistan who it Head of State
and represents the unity of the Republic. The tenor of the speech was
that the Government could not be carried on in accordance with the provisions
of the Constitution and he advanced his own reasons and theory for the same
which reasons and theory, in fact, are unwarranted and misleading. The ‘ Prime
Minister tried to cover up the failures and defaults of the Government although
he was repeatedly apprised of the real reasons in this behalf, which he even
accepted and agreed to rectify by specific measures on urgent
basis. Further, the Prime Minister’s speech is tantamount to a call for
agitation and in any case the speech and his conduct. Amounts to subversion of
the Constitution.”
The above ground is to
be read with the above quoted opening para. of
the impugned order. It refers to the meetings held between the
President and the Prime Minister in March‑April, 1993; the last being on
14‑4‑1993, wherein the President impressed upon the Prime Minister
t.6 ‘.take positive steps to resolve the grave internal and international
problems confronting the country and the nation. It. has been further stated
that the President was anxiously looking forward to the, announcement of,
concrete measures by the Government to improve the situation but the Prime
Minister instead of that, made speech on 17‑4‑1993 in order to
divert the people’s attention by making false and religious allegations against
the President of Pakistan who is Head
of the State and represents unity of, the Republic. It has been also
averred that the tenor of the speech was such that the ‑Government could
not be carried on in accordance with the provisions of the Constitution and
that the above speech is tantamount to call for agitation and, in any case, the
speech and the above conduct of the Prime Minister amounts to subversion of the
Constitution.
Mr. Khalid Anwar, learned counsel for the petitioner, has urged that
the above speech is to be viewed with the background what had taken
place in the Presidency during last several months preceding to the making of
the above speech, which prompted the, petitioner to take into confidence the
nation.
On the other hand, Mr. Aziz A. Munshi, learned Attorney‑General,
was at pains to highlight the objected portions of the speech and. submitted
that because of the above speech the working relationship between the President
and the Prime Minister ceased to exist resulting into a complete Constitutional
deadlock and stalemate warranting pressing into service above sub‑clause
(b) of clause (2) of Article 58 of the Constitution in order to resolve the
deadlock and stalemate. He also invited our attention to the speeches made by
the petitioner subsequent to the passing of the impugned order, to reinforce
his above submission. Both, the parties have riled a large number of newspaper
clippings to indicate, what had happened prior and subsequent to the passing of
the impugned order.
31. It seems that the President in his address to the Joint Session of
the Parliament made on 22‑12‑1992 though cautioned the Government
on certain matters like having mod transparency in the matter of privatization,
adoption of democratic norms, praised the performance of the Government over
all. However, from the record it seems that in December, 1992, the President
had made observation about the privatization and pointed out certain
discrepancies/anomalies, for example, Secretary to the President in his letter
dated 6‑12‑1992 addressed to the Finance Minister with reference to
the meeting between the Finance _Minister and the President on 1‑12‑1992
conveyed the following ‘minutes recorded by the President regarding the
reference prices:‑‑
“I have not been able to discover any constant methodology for the
fixation of the revised reference prices.”
Then there is a letter dated 28‑12‑1992 from the Secretary
to the President addressed to the Cabinet Division with reference to the
minutes/decision of the meeting of the Cabinet Committee o ii privatization
held on 12‑11‑1992. In the annexures enclosed to ‘the above letter,
the question that under the Constitution, Council of Common Interests was to
formulate and regulate the policies in relation to institutions, ‘establishments,
‘bodies, corporations, projects, schemes, industries, owned wholly or partly by
the Federation or by a corporation set ,, up by the Federation including WAPDA
and P.I.D.C. was raised. The concluding para. 8 of I he above annexures reads
as follows:‑‑
“The kt‑up of the two privatisation commissions and the whole
process of privatisation, unilaterally initiated by the Federal Goverlithtnt,
bypassing the Council of Common Interests and the N.E.C., appearW to be ultra
vires of Constitution and can be challenged in superior Courts.”
The above letters were replied to. It is not necessary at this stage to
refer to the stand taken by the petitioner.
After the expiry of
some time from the above Presidential address to the Joint Session of the
House, two important developments had taken place, firstly, the Government
Party started negotiations with the Opposition for undoing the Eighth Amendment
and secondly, the petitioner was authorised by the Muslim League ‘
Parliamentary Party to nominate Presidential candidate for the coming elections
in November, 1993, and the indications were that the ruling . party had some
other persons in mind for having 1 Presidential candidate. After the above
developments, the Opposition leaders and the MNAs adversely disposed towards
the petitioner, became more activated, started frequently visiting the
President. Statements were issued for formation of a national Government,
change of Government and for dissolving the Assembly etc. In this behalf,
reference may be made to the newspapers clippings inter alia contained at pages
150 to 218 of the petition File 11.
It may be pertinent to mention that on 28‑3‑1993 Mr. Hamid
Nasir Chatha, Minister for Planning and Development, Mr. Anwar Saifullah khan,
Minister for Environment and Urban Affairs, and Mr. Muhammad Asad ‘Ali Khan
Junejo, Advisor to the, Primer Minister addressed the resignations to the 1. President from the
above Cabinet posts. They were followed by other’ Ministers/Ministers of State,
Advisors and Parliamentary Secretaries. In all three Ministers, three Ministers
of State, two Advisors and three Parliamentary Secretaries resigned. From the
record produced by the Federation, it appears that the resignations of Mr.
Muhammad Asad Ali Khan Jonejo bears the date of 28‑3‑19.93 and of
Mr. Roedad Khan, Advisor to the Prime Minister of 12‑4‑1993, but
none of the other resignations bears any date.
32. The above development created misunderstanding between the
President and the petitioner. The petitioner saw the President on , or about 5‑4‑EW
and informed him that he would be the Presidential candidate of the Ruling
Party. The President was also conveyed that so long as he was President, the
idea of undoing the Eighth Amendment would not be pressed The President
reportedly remarked that he had not made up his mind to contest the election
and, therefore, when the occasion would arise, he would consider the above
proposal. It was also reported that he also remarked that the Eighth Amendment
and the election of President were two different matters.
The petitioner’s above steps did not case the situation and a number of
Opposition leaders continued to call on the President and to make press
statements to the effect that there was no possibility of patch‑up
between the President and the petitioner, for example, Senator Tariq Cliaudhry
in his press statement published in daily English newspaper “Pakistan Observer”
of 7‑4‑1993 alleged that the Government had launched a well thought
campaign against the President by nominating him as the Presidential candidate
of Pakistan Muslim League which had in fact insulted him. He emphasised that,
the dismissal of the petitioner was the only solution.
In‑thc daily newspaper “The News” of
It may be pertinent to point out that as late as ‘on 10‑3‑1993
the ruled out dissolution of the Assembly while talking to the newsmen‑
at the Lady‑Reading Hospital, Peshawar, where he went to see Mr. Wali
Khan as reported in the daily English newspapers “Pakistan Observer”, Islamabad,
“Pakistan Times”, Lahore, “Frontier Post”, Lahore, “The News”, Lahore, an
dated, 10‑3‑1993 (the relevant newspaper clippings are at pages 61
to 65 of Part 11 of the Petition rile).
In the daily “The News”, Islamabed of 15‑4‑1993, it was
reported that in the above meeting of 14‑4‑1993 the President
demanded removal of certain Ministers/officials. It may be appropriate to refer
to the Press clippings of the period from 14‑4‑1993 to 17‑4‑1993
i.e. the 3 days, ‘which lapsed between the above meeting and the impugned
speech.
The daily “Dawn” dated
15‑4‑ , f993 under the caption “Ishaq‑Nawaz meeting‑
makes’ no headway” reported about ‘the above meeting between the President and
the petitioner and reported that they had 90 minutes talk with each other, during
which the petitioner was assisted by two Federal Ministers, namely, Lt.‑General
(Retd.) Abdul Majid Malik and Mr. Ilahi Bux Soomro, but later the petitioner‑had
a 40 minutes exclusive one to one meeting with the President. The former
Minister for Planing, Hamid Nasir Chatha, when contacted, told ‘Dawn “that the
above meeting did not pave the way for their reconciliation. The reaction of
the President’s son‑in‑law and former Minister
for Environment and Urban Affairs, Mr. Anwar Saifullah Khan, was also the
same as he reportedly told the correspondent of “Dawn” that situation remained
the same as there was no solution. He further allegedly remarked “How can there
be any reconciliation?” The daily “Nawa‑i‑Waqt” of
It gives the details what transpired in the above meeting. It may
further be stated that the daily “Jang”,
(Above newspaper clippings arc at pages 129, 263 ‑and 264 of the
File 11 of Rejoiner to the Written Statement File).
33. Another development which had taken place was that upon receipt of
requisition on 18‑4‑1993 in terms of clause (3) of Article 54 of
the Constitution, the Speaker summoned the session of the National Assembly for
19‑4‑1993 at 5‑00 p.m. for discussing the current political
situation in the country. The above development was reported in the Press
widely and the daily “Dawn”,
NEED TO,BE TIED UP.STATES”. The relevant portion of the same reads as
under:‑‑
“According to an inside story of what happened on the fateful day on
April 18 the President and his Advisors were still prepared to condone the
atrocious language used by the Prime Minister in his address to the Nation, if
he would explain his position and implement the promises he had made to the
President.. But the decision to requisition the session and the Speaker’s
decision to call the Session on Monday afternoon created panic in the
Presidential camp.
The President was told if had to survive an impeachment motion ‘ he had
to dissolve the House within hour,. a frequent visitor to the Presidency
revealed. He agreed, but the justification for the dissolution was not complete
until, the resignations of the MNAs were given to President. All the opposition
parties had done the exercise except PDA whose leader was in session of her
party’s central executive. So a call from the Presidency to Mg. Bhutto to
immediately rush and see the President. She’ was‑pleasantly shocked and
dashed leaving her party leaders in the middle of the discussion, the story
went on. The meeting of the President and the Opposition leader, hitherto
adversaries of the First order, went on very well as Benazir presented the 41
resignations. “Baba was now happy and satisfied that Bibi stood by him at a
difficult moment, despite the good and bad things done by him to her. in the
recent months”.
When, Benazir emerged from the meeting, she was met by NPP Leader
Ghulam Mustafa Jatoi and JUP leader Gen. (Retd.) K.M. Azhar. She asked them
whether it was true that the President was about to dissolve the Assemblies.
She was told by an ever present Mr. Sharifuddin Pirzada that he was.”
It may be stated that the Prime Minister had earlier sent a summary for
summoning of the National Assembly for 22‑4‑1993, which summary
according to Mr. Aziz A. Munshi was cleared by the President on 17‑4‑1993
but it was not sent back to the Prime Minister Secretariat in view of what had
happened in the evening of 18‑4‑1993. The National Assembly could
not meet on 19‑4‑1993 as the impugned dissolution order was passed
in the evening of 18‑4‑1993.
The resume of the events which culminated in the making of the above
speech by the petitioner on 17‑4‑1993 on electronic media indicates
that there was some background. It cannot be denied that the political elements
hostile to the petitioner made all efforts to oust him from the Government. In
their above efforts they also sought the help of the President and impressed
upon him to press into service above Article 59 (2) (b) of the Constitution and
with that object they collected and
handed over 88 resignations from the MNAs. Keeping in view the above
background, we may now refer to the objected portions of the petitioner’s
speech in order to decide, whether the above objected portions, warranted the
dissolution of the National Assembly and the dismissal of the Cabinet and the
petitioner as the Prime Minister.
34. Mr. Aziz A. Munshi has furnished an English translation of the
petitioner’s above speech and underlined the portions which, according to him,
are objectionable and which indicate that there was’ a total deadlock and
stalemate between the two pillars of the Federation. It may be advantageous to
reproduce the relevant parts of the same; which reads as follows:‑‑
“The adverse effects of the atmosphere of uncertainty created by the
vested interests in the country during the last one month are now
beginning surface
... ... ... ..
..The people are restless and. comprehensive as to what will happen
in the next few days, It is regrettable that the conspirators who have create(]
such an atmosphere of uncertainty are using, a place for their nefarious
activities which should have been a symbol of Pakistan’s integrity federation and stability.
Unfortunately, these people seem to be totally oblivious of the
senctity which is attached to that place and they are using it for
creating instability and chaos which is a Constitutional symbol o Pakistan’s
stability ... ... ... crisis further seems to be connected to that place where
the sanctity of the , Constitution should have been respected.
But alas! the ‑kind of politics which I have to confront
contained less decency and more filth, Let me tell you today about the nature
of the people I have to deal with. I have learnt to respect the elders right
from my home and I maintained this tradition even after coming over to
A place from where I should have been given guidelines for the
stability, unity and solidarity of the country, I was directed not to out in
trouble Sardar Asif Ahmed Ali who declared Pakistan a terrorist State. I took a
strong stand on it and told clearly that he tried to cause more harm to the
country than an enemy and his arrest orders have been issued by me. My heart is burning with hot secrets but
national interest and honour do not allow me to disclose them. But why should I
keep secret from you which can be revealed. How shameful it is that whenever
I proceeded abroad on State visits, a storm of conspiracies was raised in my
absence. Attempts were made to belittle me before the foreign hosts. Is this
disgraceful for me or for‑Pakistan?
The place which should have been a symbol of stability, progress and
prosperity .
The place which should have been a source for strength democracy and
for the welfare of people started showing signs of one man’s rule.
The outside attempts to destabilise the democratic process had their
roots inside that place.
The tragedy is that the conspiracies to fragment the Muslim League, the
mother party of
My dear countrymen!
As Prime Minister I can only say that there arc many things to be
narrated but I will say those in my political position. I ‘can say at this
juncture that whatever had been done from there. should have been done. Every pressure tactic was
used to ‘force me‑ to leave the arena and I kept for the completion of those projects
which I had started for the progress and prosperity of the people ... ... ...
... ... ...
... ... ... ... ... ... ... ...
... ... Today I am narrating all these things t you. The story does not end
here. Conspiracies were hatched against me for committing the crime of loving
the country and the people which touched such a high dimension that every third
person among my companions was asked to’ change the loyal of all the MNAs and
become the Prime Minister. At present, ten to fifteen Prime Ministers are
wandering in
My dear countrymen!
I have come to you Just to remove the uncertainties, created by certain
conspirators and opportunists.‑ having been disappointed by their future,
and they have created this situation by turning a respected place into a Centre
of their unholy activities.
The nation is aware that my personal interest is not involved in these
programmes of agricultural and industrial development. That is why the nation
has trust in me and I will not betray this trust. I am aware of the
difficulties which I may confront on the path I have chosen; but I won’t leave
my mission unaccomplished. Insha’ Allah, I will take the
nation to its
cherished destination for which I had promised during the 1990 election
campaign and for which I have to face the most difficult situation, but these
momentary hurdles cannot deter me from my aim. Political expediencies and
considerations cannot disappoint me, rather they
would further strengthen my determination. Recent crises have further
strengthened my commitment and it is my resolve that I would perform all those
duties which are in the interest of the country and the people and no hurdles
in my way can stop me from achieving these goals, I will do all that is the
need of my country, desire of my people and is in accordance with my official
position.’ Therefore I shall not resign, I shall not dissolve the Assembly, I
shall not take dictation. It will be, my majority in the Assembly, Insha’
Allah. But the question arises that why did threats were created for the country’s
security and economy in the presence of a table Government, commanding
absolute majority in the Assembly? Why a crisis was created in the country? Who
is responsible for this? I leave the decision to you.” (The underlined are the
portions objected to by the learned Attorney‑General).
35. If the contents of
the petitioner’s speech as a whole are to be examined in juxtaposition with
what had happened during 2/3 months
preceding to the above speech, one can appreciate in what context it was
made I may observe that under Article 41
of the Constitution, the President is the Head of the State and represents the
unity of the Republic. His position is of a non‑partisan person. As
pointed out hereinabove that Article 58(2)(b) of the ,Constitution was not
intended and designed to be pressed into service at the behest of the elements
hostile to the Government in power to oust it though it may command majority in
the National Assembly. The power under the above provision though
discretionary, is to be exercised sparingly, independently, honestly, fairly
and reasonably without any bias and ill‑will. If the exercise of the
above power is tainted with personal likes or dislikes, the same shall stand
Vitiated . Furthermore, it may again be pointed out that in the case of
Muhammad Saifullah Khan, it has been held that the above provision can be
pressed into service when the machinery of Government is broken down completely
and its authority is eroded and that it does not concern with the pace of the
progress, the shade of the quality or the degree of the performance or the
quantum of achievement.
I
The elements hostile
to the petitioner sought the help of the President and in that connection and . made the above Press statements. Though
the President on 10‑3‑11Y)3 while speaking to the Press at Lady
Reading Hospital, Peshawar., remarked that he had, no intention to dissolve the
Assembly but the fact remained that the elements hostile to the petitioner
continued to call on the President and continued to make Press statements to the effect that the petitioner’s days
were numbered and that the dissolution of the Assembly was imminent.
There is no doubt that some of the remarks made by the petitioner in
his above speech are couched in very strong words and they should not have been
made as any public split between the two high functionaries of the State may not be conducive for
maintaining good relations between them and in the interest of good government.
Mr. S.M. Zafar has
invited our attention t I o the following passages from the well‑known
treatises, namely, de Smith and Brazier “Constitutional and Administrative Law”,
Sixth Edition by Rodney Brazier, and the “Constitutional and Administrative Law”,
Text and Materials by David Pollard and David Hughes:‑‑
“Passage from the _,Constitutional and Administrative Law. ‑‑‑Any
public disclosure of
disagreement between the Queen and the Prime Minister of the day could be
damaging. In 1986 a senior source within
Passage from the Constitution and Administrative Law by David Pollard
and avid HL1ghes.‑‑
“Any public revelation of disagreement could be damaging to the
existing and future relationship between head of Government and head of State,
for obviously if it became known that the Queen has criticized Government
policy, she might be taken to be biased against that Government and to be in
favour of another.”
36. There cannot be
any cavil with the above proposition that any public revelation of disagreement
between head of State and, head of Government as observed hereinabove will be
damaging. However, the question remains, whether the above speech could furnish
a ground for dissolution of the Assembly and dismissal of the Cabinet and the
petitioner as the Prime Minister. Mr. Aziz A. Munshi was at pains to lay
emphasis that in order to have working relations between the President and the
Prime Minister, they should be on good terms. He has furnished a chart to
indicate in what different capacities President acts, namely:
(i) Under discretionary
power: Under Articles 48 (2) (5) (6), 58’(2), 101
(1), 105 (3) (4) (5),
112 (2), 213 (1), 241 (1‑A) and 243 (2) (c).
(ii) Upon the advice of the
Prime Minister under Articles 48 (1) (4), 58
(1), 91 (1), 93 (1), 105(l), 112 (1), 130 (1), 132 (1), 156(l), 183 (2)
and 198(4).
(iii) In
consultation: Under Articles 72 (1), 101(l), 160(l), 177 (1), 193(l),
200(l)(3), 203(c)(4),
235(l).
(iv) Accords
approval, under Articles 87 (3), 170, 182, 183(2), 200(3), 221
and 231.
Mr. Aziz A. Munshi, learned Attorney‑General has also invited our
attention to the petitioner’s subsequent Press interviews and Press statements
after the passing of the above dissolution order to indicate that it was not
possible for the two to work together, particularly, he invited our attention
to a Press interview given by the petitioner to the magazine “Herald” which was
published in May, 1993, Issue, wherein the petitioner has allegedly used the
following strong language:‑‑
“Because in my view he is too old to take correct decisions. I
sincerely believe that the time for him to step down has come and if he refuses
to do so, the people of
He has also invited our attention to a number of newspaper clippings
subsequent to the above dissolution order, which
are at pages 599 to 613 of the Federation’s documents File No.11.
On the other hand, Mr. Khalid Anwar, has invited our attention to the
factum that the President in his dissolution order had alleged that the
petitioner was guilty of subversion of the Constitution which according to his
amounts to high treason under Article 6 of the Constitution. He also invited
our attention to certain portions of the President’s speech made on the night
of 18‑4‑1993 in connection with the dissolution order, wherein
according to him, strong language was used by the President.
He ,has further invited our attention to some newspaper clippings of
the year 1992 to point out that Mohtarma Benazir Bhutto had used much stronger
language than what was used by the petitioner in his above speech of 17‑4‑1993,
particularly, he invited our attention to the daily newspaper ‘Muslim’
Islamabad, of 25‑2‑1992, wherein the Reporter attributed the
following statement to Mohtarma Bcnazir Bhutto:‑‑
“She said the Aiwan‑e’‑Sardr had been converted into a den
of conspiracies and sounded a warning that if efforts would be. made to crush
people’s politics, they would be foiled.”
According to Mr. Khalid Anwar if the President’ can work with Mohtarma
Benazir Bhutto or her nominees, why it will not be possible for the Preside and the petitioner to have working
relationship in terms of the Constitution. In my view, there is a marked
distinction between a statement made by a person holding a high public office,
who is expected to be discreet and careful and a statement made by a politician
while he or she is out of power. In the game of politics, politicians
particularly in our region some times make statements for public consumption.
The petitioner after the passing of the impugned order started public comparing
for enlisting support of the public inter alia for election of the National
Assembly which was then due on 14‑7‑1993. Thus we
will have to view the petitioner’s post‑dissolution statements
differently and the same cannot be equated with the statements, which be made
while in power. This will be equally applicable to the statements made by
Mohtarma Benazir Bhutto. However, there is no doubt that strong language was
used by the petitioner after his dismissal and so also by Mohtarma Benazir
Bhutto in her Press statements made by her in early 1992. But at the same time,
it is evident that persons having different point of views and having strained
relations can work together, if the situation and dictates of time so demand.
After the dismissal of the petitioner’s Government, Mohtarma Benazir Bhutto’s
nominees were ‘inducted into the Care‑taker Government which
included her
husband.
It may also be stated that a distinction is to be drawn between
personal relationship and the relationship’ of that of the President and the
Prime Minister. The two persons may not have good personal relationship but
they are supposed to have Constitutional relationship in terms of the
Constitution. It may be stated that the oath of offices of both the above high
functionaries enjoin them to do right to all manner of people, according to
law, without fear or favour, affection or ill‑will. Our Constitution
demarcates and delineates the powers of the President and the Prime Minister
clearly. In case of any doubt, a reference can be made to the Supreme Court in
terms of clause (6) of Article 48 of the Constitution for resolving the
controversy.
In my view though the launching of personal attack by the petitioner on
the President in his above speech of 17th April, 1993, was not warranted T’ and
desirable but simpliciter same could not have furnished a ground to press into
service Article 58
hereinabove.
I
We also heard the learned Attorney‑General with the assistance of
the then Foreign Minister, Mr. Sharifuddin Pirzada, and the Foreign Secretary,
Mr. Sheharyar M. Khan, in presence of the counsel for the petitioner about the
internal and international problems referred to in above ground V. It will
suffice to observe that I am unable to subscribe to the view that there was any
inaction on the part of the petitioner of the nature which warranted the
dissolution of the Assembly and the dismissal of the Cabinet particularly
keeping in view that hardly two days had expired. I am, therefore, inclined to
hold that the above ground ‘b’ is also not sustainable as it has no nexus, to
the
(2) (b) inter alia for the reasons referred to
reasons contained in sub‑clause (b) of clause (2) of Article 58
of the
Constitution.
37. Before taking up any other ground of the impugned order, it may be
pertinent to dilate upon the status of the President and the Prime Minister
under our Constitution. It is wrong to assume that the President is merely a
symbolic head. The provisions of the Constitution highlighted above indicate
that he has to perform his Constitutional functions and duties in different
capacities. Rustom S. Sidhwa, J. in the case of Ahmed Taiiq Rahim (supra) has
after referring to the various provisions of the Constitution described the
President as under‑
“8. A few words may be
stated about the position of the President. The President, as the Head of the
State, represents the unity of the Republic. He is thus placed above the party.
He is the benign moderator and the symbol of the impartial dignity of the
State. He is entitled to certain communications and information, which is the
duty of the Prime Minister to furnish, with power to submit for the
consideration of the Cabinet any matter on which a decision may have been taken
but which has not been considered by the Cabinet. He can call upon the Cabinet
to reconsider any advice tendered or consider such advice. He has power to act
in his discretion in respect of any matter in respect of which he is empowered
by the Constitution to do so, with entitlement to decide whether he is so
empowered. He has power to refer any matter of national importance to a
referendum. He has power to send messages to either House for their
consideration. He has the right to address both Houses assembled together at
the
commencement of the each Session of Parliament. He has the power to
dissolve the National Assembly if, in his opinion, a situation has arisen in
which the Government of the Federation cannot be carried on in accordance with
the provisions of the Constitution. He has the power inter alia to appoint the
Chairman of the Joint Chiefs of Staff Committee and the three Chiefs of the
Army Staff, Naval Staff and Air Force Staff. He is at the apex, as the
executive authority of the Federation, which is vested in him, is exercised by
him directly or through officers subordinate to him. He is to be aided and
advised in the exercise of his functions by the Cabinet of Ministers, with the
Prime Minister at its head. In the exercise of his functions, he has to
act in accordance with
the advice of the Cabinet or the Prime Minister; except in cases where he is
obliged to act in his discretion. The President is therefore no less powerful
than the Prime Minister.”
In the book under the caption “Constitution of India’ by Mangal Chandra
Jain Kagzi, 1987 Edition, Vol. 1, the author has summed up the position of the
Indian President as under though he does not have many powers which have been
conferred by our Constitution on our President inter alia by the Eighth
Amendment as discretionary power:‑‑‑
“The Indian President, on the other hand, is a popular uniting symbol.
Elected on the basis broader than the Prime Minister, although indirectly by
the people, he has the privileges of the king and duties of a modern head of a
democratic republican State. He is given the full ceremonial status of a
monarch without any dynastic or hereditary claim for it. When outside
De Smith and Brazier in their book “Constitutional and Administrative
Law”, Sixth Edition by Rodney Brazier (supra) have described the status of the
Queen in England in relation to the executive powers as under:‑‑‑
“This is not to say that the, monarch must be mere cypher. As Bagehot
wrote, she has ‘the right to be consulted, the right to encourage, the right to
warn’. He could have added that she also has the right to offer, on her own
initiative, suggestions and advice to her Ministers even where she is obliged
in the last resort to accept the formal advice tendered to her.
To be more explicit, she has the conventional rights to receive Cabinet
papers and minutes to be kept adequately informed by the Prime Minister (with
whom she has regular weekly audiences) on matters of national policy, to
receive Foreign Office dispatches and telegrams and other State papers, and to
be notified proposed appointments and awards to be made in her name so that she
can express her views informally. She can make such private comments as she
thinks fit: she can remonstrate and offer strong objections to a proposed
course of action.”
I may ‑point out that the Indian President enjoys certain.
discretionary powers, which according to the above Indian Author might also
include under certain conditions powers to dissolve the House of the people and
power to dismiss a Ministry. The Queen in
It may be pertinent to point out that Article 46 of the Constitution
imposes the following Constitutional duties on the Prime Minister:‑‑
(a) to communicate to the
President all decisions of the Cabinet relating to the administration of the
affairs of the Federation and proposals for legislation;
(b) to furnish such
information relating to the administration of the affairs of the Federation and
proposals for legislation as the’ President may call for; and
(c) if the President so
requires, to submit for the consideration of the Cabinet any matter on which a
decision has been taken by the Prime Minister or a Minister but which has not
been considered by the Cabinet.
The above Article is to be read with the other provisions of the
Constitution particularly with clause
(2) of Article 58 of the Constitution, which empowers the President to dissolve
the National Assembly and ‑as a result of which the Cabinet is to cease
to function The above, powers cannot be
exercised by the President unless he keeps him‑self abreast of the
day to day working of the Government. In my view, Lilt: cumulative‑ effect of the various provisions of the
Constitution relating to the President is that
the, President enjoys the right to be consulted, the right to encourage and
the right to warn as remarked by Bagehot
about the British Crown. In order to
discharge his above Constitutional duties, he is expected to be vigilant and to
keep his eyes and ears open. The documents produced by the Federation
demonstrate that the President has attended to the above Constitutional duties
by highlighting the various deficiencies and the need of improvement in the
working of ‘the Government.
But at the same time the Prime Minister’s status is neither inferior
nor., is less important to that of the President. Except in the matters which
are in the sole domain of the President, the President cannot act without the
advice of the Prime Minister, whose advice is binding on him by virtue of
Article 48(l) of the Constitution. The Prime Minister, in fact, runs the
Government and formulates its policies in terms of the Constitution and is
accountable to the Parliament. He represents the will of the‑ people.
Prior to the Eighth Amendment the Prime Minister was all in all, but after the
above amendment, the position has changed considerably.
38. After the above deviation, I may refer to ground ‘c’, which has
three sub‑paras. and which reads as follows:‑‑‑ ‑
Cc’ Under the Constitution
the Federation and the Provinces are required to exercise their executive and
legislative authority as demarcated and defined and there are specific
provisions and institutions to ensure its working in the interests of the
integrity, sovereignty, solidarity and well‑being of the Federation and
to protect the autonomy granted to the Provinces by creating specific
Constitutional institutions consisting of Federal and Provincial
representatives, but the Government of the Federation has failed to uphold and
protect these, as required, in that, inter alia:
The Council of Common Interests under Article 153 which is responsible
only to Parliament has not discharged its Constitutional functions to exercise
its powers as required by Articles 153 and 154, and in relation to Article 161,
and particularly in the context of privatisation of industries in relation
to item 3 of Part 11 of the Federal Legislative List and item 34 of the
Concurrent Legislative List.
(II) The National Economic Council under Article 156, and its Executive
Committee, has been largely bypassed, inter alia, in the forumlation of plans
in respect of financial, commercial, social and economic policies.
(iii) Constitutional powers,
rights and functions of the Provinces have been usurped, frustrated and
interfered with in violation of inter alia Article 97.”
In order to appreciate the above ground, it may be pertinent to refer
to the relevant Articles of the Constitution, pertinent pleadings and the
documents on record.
39. Article 153 of the Constitution envisages establishment of a
Council of Common Interests, hereinafter referred to as the Council. It further
contemplates that the members of the Council shall be‑‑
(a) Chief Ministers of the
Provinces; and
(b) an equal
number of members from the Federal Government to be nominated by the Prime Minister from time to time.
It also provides that the Prime Minister if he is a member of the
Council, shall be the Chairman of the Council but if at any time he is not a
member, the President may nominate a Federal Minister who is a member of the
Council to be its Chairman. It also envisages that the Council shall be
responsible to the Mailis‑e‑Shoora.
It may also be pertinent to observe that clause (1) of Article 154 of
the Constitution defines the functions of the Council by providing that it
shall formulate and regulate policies in relation to matters in Part 11 of the
Federal Legislative List and in so far as it is in relation to the affairs of
the Federation, and the matter in
entry 34 (electricity) in the Concurrent Legislative List. It further provides
that the Council shall exercise supervision and control over the related
institutions. At this juncture, it may be appropriate to refer to Part 11 of
the Federal Legislative List referred to in the above clause, which has eight
items. It will suffice to reproduce items 1 to 4, which read as follows:‑‑‑
(1) Railways.
(2) Mineral oil and natural
gas; liquids and substances declared by Federal
Law to be dangerously inflammable.
(3) Development of
industries, where development under Federal Control is declared by Federal law
to be expedient in the public interest; institutions, establishments, bodies
and corporations administered of managed by the Federal Government immediately
before the commencing day, including the Pakistan Water and Power Development
Authority and the Pakistan Industrial Development Corporation; all
undertakings, projects and schemes of such institutions, establishments, bodies
and corporations, industries, projects and undertakings owned wholly or
partially by the Federation or by a corporation set up by the Federation.
(4) Council of Common Interests.”
Whereas item 34.in the Concurrent Legislative List relates to
electricity.
It may also be pertinent to state that clause (2) of Article 154 lays
down that the decision of the Council shall be expressed in terms of. the
opinion of the majority, whereas clause (3) provides that until Majlis‑e‑Shoora
makes provision by law in this behalf, the Council may make its rules of
procedure. It may further be pointed out that under clause (4) Majlis‑e‑Shoora
in joint sitting may from time to time by resolution issue directions through
the Federal Government to the Council generally or in a particular matter to
take action as Majlis‑e‑Shoora may deem just and proper and such
directions are binding on the Council. It may further be pointed out that under
clause (5), it has been provided that if the Federal Government or a Provincial
Government is dissatisfied with the decision of the Council, it may refer the
matter to the Majlis‑e‑Shoora in a joint sitting, whose decision in
this behalf shall be final.
40. It may also be stated that Article 1 55 provides for the resolution
of any dispute in respect of water from any natural source, arising out of any
executive act on account of failure of the authority to exercise any of its
powers with respect to the use and’ distribution or control of water from the
source. It provides that the Federal or Provincial Government concerned may
make a complaint in writing to the Council. The other clauses of the above
Article deal with the procedural and other matters. However, it will suffice to
observe that under clause (5) of the above Article 155, it has been provided
that notwithstanding any law to the contrary but subject to the provision of
clause (5) of Article 154, it shall be the duty of the Federal Government and
the Provincial Government concerned in the matter in issue to give effect to
the decision of the Council faithfully according to its terms and tenor.
It may also be stated that clause (1) of Article 156 envisages the
constitution of a National Economic Council, hereinafter referred to as N.E.C.
by the President consisting of the Prime Minister, who shall be its Chairman
and such other members as the President may determine. However, the proviso to
the above clause provides that the President shall nominate one member from
each Province on the recommendation of the Governor of that Province. Whereas
clause (2) thereof defines the functions of N.E.C. by providing that it shall
review the overall economic conditions of the country and shall for advising
the Federal Government and the Provincial Governments formulate plans in
respect of financial, commercial, social and economic policies and in
formulating such plans, it shall be guided by the principles of policy set out
in Chapter 2 of Part 11 of the Constitution.
It may further be stated that Article 160 envisages the constitution of
a National Finance Commission within six months of the commencing day and
thereafter at intervals not exceeding rive years by ‘the President consisting
of the Minister of Finance of the Federal Government, the Ministers of Finance
of the Provincial Governments and such other persons as may be appointed by the
President after consultation with the Governors of the Provinces. It may also
be stated that clause (b) thereof provides that it shall be the duty of the
National Finance Co m‑mission to make recommendation to the President as
to‑‑
(a) the
distribution between the Federation and the Provinces of the net proceeds of
the taxes mentioned in clause (3);
(b) the making of grants‑in‑aid
by the Federal Government to the Provincial
Governments;
(c) the exercise by the
Federal Government and the Provincial Governments of the borrowing powers
conferred by the Constitution; and
(d) any other
matter relating to finance referred to the Commission by the President.
it may further be stated that clause (3) thereof lays down that the
taxes referred to in paragraph (a) of clause (2) are the following taxes raised
under the authority of Majlis‑e‑Shoora:‑
(i) taxes on income, including corporation tax but not including taxes
on income consisting of remuneration paid out of the Federal Consolidated Fund;
(ii) taxes on the sales and
purchases of goods imported, exported, produced,
manufactured or consumed;
(iii) export
duties on cotton, and such other export duties as may be specified by the President; ‑
(iv) such duties
of excise as may be specified by the President; and
(v) such other
taxes as may be specified. by the President.
Whereas clause (4) of the above Article,‑‑ empowers the
President to pass an order on the recommendation of the N.F.C. about the share
of the Provinces. It may also be observed that clause (5) thereof envisages
that the recommendations of the National Finance Commission together with an
explanatory memorandum as to the action taken thereof shall be placed before
the Houses and the Provincial Assemblies.
It may also be pointed out that clause (6) empowers the President to
make such amendment and modification in the law relating to the distribution of
revenues between the Federal Government and the Provincial Governments as he
may deem necessary or expedient at any time before an order under clause (4) is
made. Whereas, clause (7) thereof provides that the President, by Order, may
grant in aid of the revenues of the Provinces in need of assistance and such
grant shall be upon the Federal Consolidated Fund.
it may further be stated that Article 161 of the Constitution provides
that the Provinces are to receive net profits of the Federal duty of the excise
on natural gas levied at well‑head and collected by the Federal
Government and of the royalty collected by the Federal Government and that the
same shall not form part of the Federal Consolidated Fund. The other provisions
of the above Article need not be dealt with for the purpose of present
controversy.
41. The petitioner in para. 5 of their petition which runs into six
pages, has dealt with the above grounds exhaustively and has pointed out that
since November, 1990, the petitioner Government has fully respected the
Constitutional power, rights and functions of the Provinces inasmuch as under
Article 161(2) for the first time since 1978 Rs.6,000 million were paid to N.‑W.F.P.
Government for the year 1991‑92 as the net profit earned by the Federal
Government from a Hydro Electric Station located in that Province and a similar
amount was paid in 1992‑93, whereas under Article 161(l) the excise duty
on natural gas recovered on the well‑head situated in Balochistan for the
year 1991‑92 to the tune of about Rs.4,000 million (in addition to Rs.700
million excise duty on natural gas) were paid to Balochistan Province. It has
also been averred that the institutions contemplated under the above Articles
have been operating. As regards privatisation, the following averments have
been made:‑‑
“(a/1) Privatization policy was effectively implemented for the first
time. It has been continuously under consideration and implementation. Since
1977, some units were privatised between 1977 and in 1985 a dis investment
committee was set up. In 1989, the then Government had identified 14 specific
units for privatisation. Many new laws were enacted to implement the dis
investment policy since 1978. None of the successive Governments had consulted
the CCI.
(b/1) The Federal Government had Constitutional, legislative and
executive authority under Articles 70 and 97 of the Constitution in respect of
all matters in respect of which Parliament has powers to make law (i.e. the
Fourth Schedule including its Part It which comes under the purview of CCI
under Article 154). It had also the executive power to grant, sell or dispose
of any property vested in the Federal Government under Article 173 of the
Constitution. The Federal Government had accordingly continued to perform these
functions in the absence of any clear directions from the‑ CCI under
Article 154.
(c/1) The CCI had held three meetings in 1991, when the privatisation
policy was under full implementation but no member raised any issue with regard to privatization, nor has the
council so far defined, since its creation, the manner in which it will carry
out the functions entrusted to it under Article 154.
Thus, after taking into consideration the several positive steps taken
by the Government since November 1990 of strengthening the role of CCI the
charge of lack of consultation with CCI and the policy of privatization which
has been in operation since 1977 ;s baseless. It even otherwise does riot
amount to a constitutional violation since Government’s actions in this respect
are in line with and within the bounds of Constitution.”
As regards the meetings of CCI, NFC the following averments have been
made:-
“(d/1) (i) The Council of Common Interests which had remained a dormant
organization since its creation was activated and three meetings were held on
(ii) The National Finance
Commission, which under Article 160(l) of the Constitution, is to be
constituted every 5 years, had not given its award since 1975. A new Commission
was constituted in January, 1991, and submitted a unanimous award in April,
1991. This has provided additional resources of Rs.25/30 billion each year to
the Provinces and thus met one of the essential prerequisites for enabling the
provinces to discharge the functions entrusted to them under the Constitution.
(iii) A separate Ministry of
Inter‑Provincial Coordination was set up. An inter‑Provincial
Coordination Council was created consisting of several Ministers and the four
Chief Ministers and Prime Minister AJK Government. The Council has met twice in
a very cordial atmosphere and resolved many Inter‑Provincial issues. The
first meeting was held on
42. The Federation in para. 5 of the written statement has dealt with
the question of privatization and holding of meetings of CCI and NEC as
follows:‑‑
“5(l)(v) Averments made in para. 5(l)(v) are misleading and incorrect.
The petitioner has accepted that these are two specific examples of the role of
Constitutional bodies like CCI and NEC and its Executive Committee having been
bypassed. The explanation about Council of Common Interests not being allowed
to discharge its Constitutional functions with regard to privatisation of
industries and power units is wholly unacceptable. This is not the issue where
the Ministers concerned are authorised to bypass Constitutional bodies like CCI
and NEC and its Executive Committee. This has prejudicially affected the rights
of the Provinces and violated the Constitutional mandate and eroded the role of
Parliament.
5(a)(l)‑Thc averments made in para. 5(a)(1) are incorrect and
misleading. It is denied that privatisation policy was effectively implemented
as alleged. The petitioner and his Government unilaterally formulated the
Privatization policies in disregard of Constitutional provisions, in that CCI
was not ‘ allowed to formulate and regulate policies in relation to matters
mentioned in Article 154. In any event the process of privatization lacked
transparency and was vitiated by various illegalities and irregularities e.g.;
(a) The reference prices
were frequently changed. (b) The methodology for fixation of net worth of units
was not consistent. (c) Bidding system was not consistent and the units were
transferred to favourites of the petitioner ignoring the highest bids, on
various pretexts. (d) Recovery of sale price was not made in specified time
frame and manner. This resulted in wastage of public assets at the cost of
national exchequer. (c) The mode of sale/transfer enabled the transferees to
manipulate prices of products of sold units and make fortunes overnight to the
detriment of the consumer. (1) In fact by these devices the Transferees paid
the Transfer price out of the windfall proceeds. Even the units which were
making profits were sold without realising the loss to the National Exchequer.
Eight Cement Factories were sold to one Group of Industrialists and the manner
in which the Muslim Commercial Bank was sold to the favourites of tile
petitioner namely Mansha Group is well‑known. Relevant record will be
produced at the relevant time and if required, to show favouritism and misuse
of power by the petitioner. In consequence of the sale of eight cement
factories to his favourites Mansha Group the petitioner managed to have the
major production of cement in tile country to be concentrated and monopolized.
This was a clear misuse of power and has become public scandal throughout the
country. Details of other questionable sales by and at the instance of the
petitioner and his Government will be produced before the Honourable Court if
necessary.
Privatization:
(a) It is denied that there
was any enthusiastic public response of petitioner’s policies as alleged. The
real facts relating to the policies in regard to privatization and other
matters are being brought to the notice of the Honourable Court. It is
submitted that the petitioner’s policy of privatization and sale of properties
owned by the Federal Government
including Corporations was unconstitutional, illegal and suffered from many
deficiencies and was not transparent at all. The specific provisions of the
Constitution contained in Articles 153, 154,156 read with Article 161 were violated by the petitioner and his
Government. Documents/records and information
in this behalf are being placed on record of this Honourable Court
(Annexure ‘A‑4, 5, 7 and E‑3). For example, the petitioner and his
Government in violation of Constitutional provisions besides illegal selling of
corporations, banks, industries decided to sell even to foreign investors and
privatise national institutions/industrial units like WAPDA, Railway and Pakistan
Telecommunication Corporation, PNSC. Port facilities without consulting the
Provinces or the public representatives and the people whose interests were
adversely affected thereby thus
endangering the structure and integrity or the Federation.”
43. Both the parties have produced a number of documents besides the
President Secretary’s above letters dated 6‑12‑1SN2 and 28‑12‑1992
referred to in para. 31. The Federation has produced documents at pages 61 to
118 relating to proposed privatization of WAPDA, at pages 119 to 126 pertaining
to proposed privatization of Railways, at pages 251 to 253 relating to
privatization of Muslim Commercial Bank (all in File Vol.111) besides certain
newspaper clippings, in which allegations about mal practices in the privatization
have been made. In addition to that the respondent Federation has produced two
letters of the Chief Minister of N.‑W.F.P., one letter each of Sindh and
Balochistan Chief Ministers and also copies of the references made by Mr. M.
Salman Taaseer, Information Secretary, P.P.P. Punjab, Mr. Farooq Leghari,
Deputy Leader of the Opposition in the Assembly and Mr. Abdur Rashid Qureshi,
all addressed to the Speaker besides the charge‑sheet of the combined
Opposition.
On the other hand, the petitioner has produced a number of documents including privatization
policy and its implementation published in November, 1991, by the Ministry of
Finance, Government of Pakistan (at pages 50 to 71), privatization policy and
its implementation published in January, 1992, by the Minister of Finance,
Government of Pakistan (at pages 72 to 96), the booklet under the caption “Privatization
and Economic Policy” by Mr. Saced Ahmed Qureshi , Secretary‑ General,
Government of Pakistan (at pages 97 to 121), the booklet under the caption “Privatization
and Pakistan Structure and Statistics” (at pages 122 to 140) relating to Power
Sector at pages 141, 142 and pertaining to Telecommunication Sector (at pages
143 to 146) including revised prices chart, note on fixation of reference prices,
sample of October bidding, sample of open bidding, list of buyers (Annexure
XII), list of cement plants alongwith the buyer’s name (Annexure X111) all
contained in Constitution petition Part 11.
In the case of Ahmed Turiq Rallint (supra), in tile majority view on
ground (2) which was somewhat identical to above ground V, the following
finding was recorded:‑‑
“As regards the second ground, we rind sufficient correspondence on
record to indicate that persistent requests were made by the Provinces for
making functional the Constitutional institutions like Council of Common
Interests, National Finance Commission with a view to sort out disputes over
claims and policy matters concerning the Federation and the Federating Units.
as such. In spite of the intercession of the President, no heed was paid,
Constitutional obligations were not discharged thereby jeopardizing the very
existence and sustenance of the Federation.”
44. In Ahmad Tariq Rahim’s case (supra), in spite of the insistence of
the two Provinces and riling of legal proceedings by them and intercession of
the President, neither CCI nor NFC were operating. Whereas in the present case,
CCI, NFC and NEC have been established. They have been functioning. Thus only
point which needs consideration is that the matters covered by Part 11 of the
Federal Legislative List have not been brought for formulating and regulating
the policies. The plea taken by the petitioner in the present case is that it
was not necessary to have placed the above matters before the CCI. Further plea
raised during the arguments Was that neither WAPDA nor Telecommunication nor
Railways have been privatized and that the item of the Government Privatization
Policy was included as an item in Pre‑CCI meeting held on 11‑4‑1W3.
It may be pertinent to point out that the Chief Minister N.‑W.F.P.
addressed his first letter dated 8‑1U‑1992 to Mr. Muhammad Aslam
Khan Khattak, Minister for Inter‑Provincial Coordination, complaining
about certain matters including bypassing of NEC. It was also pointed out that
the policy matters affecting the Provinces referred to therein were decided
without taking the Provinces into confidence. It was also stated that the
Provinces felt that decisions to privatise Railways, Sui Northern Gas or WAPDA,
which were national assets were to be taken after taking the provinces into
confidence. He addressed his second letter dated 9‑1‑1993 to the
petitioner inviting attention to the provisions of Article 154 of the
Constitution and pointing out that the matters relating to privatization of
WAPDA could only be considered by the CCI and its decision could only be
amended by the joint session of the Parliament.
it may further be observed that there is a letter dated 6‑12‑1992
addressed by the Chief Minister,
The President’s Secretary raised the above questions first time in the aforesaid letter dated 28‑12‑1992.
The Chief Minister, N.‑W .F .P.’s letter about NEC is of 8‑10‑1993
(sic) and about CCI of 9‑1‑1993 and of the Sindh Chief Minister is
of 21‑3‑1993. The Balochistan Chief Minister’s letter of 6‑12‑1992
does not refer to CC[, but asked for the payment of balance amount. In my view,
the Federal Government should have’ brought the matter of privatization X in
respect of the items covered by the above Constitutional provisions before the
CCI. The petitioner’s plea that, it was not mandatory is not sustainable.
However, before the impugned order of dissolution was passed, the item of
Government Privatization Policy was included as art item for consideration by
CCI for the meeting which was scheduled after Pre‑Council of Common
Interests fixed on 11‑4‑1993. It may be pertinent to reproduce Mr.
Mansoor Ellahl, Joint Secretary to the Cabinet’s notice of the meeting dated 27‑3‑1993,
which reads as under:‑‑
“A pro‑Council of Common Interests meeting to identify and
discuss some of the main issues that may be raised before the CCI will be held
immediately after the meeting of Inter Provincial Coordination Committee
scheduled to be held at 9.30 a.m. on Sunday, the 11th April, 1993 in
the Committee. Room of the Punjab Civil Secretariat, Lahore.
2 The
following will be the agenda for the meeting:
AGENDA
(1) Progress
Report on the *Indus (Ministry of Water and Power).
Water Authority.
(2) Proposed
Development Programme (Ministry of Railways)
of Pakistan Railways.
(3) Demand and
supply of Natural Gas. (Ministry of Petroleum and Natural Resources
(4) Privatization
policy of the(Ministry of Finance
Government
(5) Any other
matter with permission
of the Chairman.
3. Summaries for items Nos.1 and 4 were circulated vide Cabinet
Division memo. No‑CCI‑1/M/93, dated the 21st March, 1993.
4 Kindly make
it convenient to attend.”
It may be pointed that the petitioner’s averment made in the petition
quoted here in above that since privatization started in 1977, the above item
has never been brought before CCI has not been denied, but identification of
the units to be privatized was done by the Government in power. It may be
mentioned that the process of privatization has the backing of the statutes. in
this regard, it may be stated that the Transfer of Managed Establishment Order
(P.O. 12 of 1978) was issued on 16‑9‑1978. This has been amended by
Ordinance XT of 1989, Ordianncc XXXIII of 1991 and Act V of 1992. We have also
Hydro generated Vegetable Oil Industry (Central and Development) Act, 1973 (LXV
of 1973) which has been amended by Ordinances XXXV and VII of 1991 and 1992 respectively and Acts XX and XI of
1991 and 1992, respectively. Besides that the Parliament has passed Protection
of Economic Reforms Act, 1992 (Act X11 of 1992), which was assented to by the
President on 23rd July, 1992 (hereinafter referred to as the Act), providing
cover inter alia to privatization. Clause (b) of section 2 of the Act defines
term “economic reforms” as under:‑‑
(b) ‘economic reforms’
means economic policies and programmes, laws and regulations announced,
promulgated or implemented by the Government on and after the seventh day of
November, 1990, relating to privatization of public sector enterprises, and
nationalised banks, promotion of savings and investments, introduction of
fiscal incentives for industrialization and deregulation of investment,
banking, finance, exchange and payments systems, holding and transfer of
currencies;”
Section 3 overrides other law by providing that:‑‑
“The provisions of this Act shall have effect notwithstanding anything
contained in the Foreign Exchange Regulation Act, 1947 (VII of 1947), the
Customs Act, 1969 (IV of 1969), the Income Tax Ordinance, 1979 (XXXI of 1979),
or any other law for the time being in force.”
It may further be observed that section 7 provides protection against
acquisition of privatised units by laying down that:‑‑
“The ownership, management and control of any banking, commercial,
manufacturing or other company, establishment or enterprise transferred by the
Government to any person under any law shall not again be compulsorily acquired
or taken over by the Government for any reason whatsoever.”
Whereas section 10 guarantees protection of financial obligations by
providing that:‑‑
“All financial obligations incurred including those under any
instrument, or any financial and contractual commitment made by or on behalf of
the Government shall continue to remain in force, and shall not be altered to
the disadvantage of the beneficiaries.
The other provisions of the Act dealing with foreign exchange acounts
etc. need not be dealt with for the purpose of the above controversy. The above
provisions of the Act indicate that the Parliament affirmed the privatization
transactions, which had taken place up to 23‑7‑1993. In other
words, privatization has the backing of law. There is no doubt that it should
have been done through CCI. The WAPDA, Sui Gas and Telecommunication units,
referred to by the Chief Minister, N.‑W.F.P. in his above letters, have
not yet been privatized. The item of the Government Privatization Policy was
included in the Pre‑Council of Common Interests meeting notified on 27‑3‑1993
for 11‑4‑1993 by the above‑quoted letter of the Joint
Secretary to the Cabinet. referred to above. In view of the above factual
background, it cannot be said that the above lapse on the part of the Federal
Government was of the nature, which had jeopardized the very existence and
subsistence of the Federation as was held in Ahmed Tariq Rahim’s case
warranting to press into service Article 58(2)(b) of the Constitution.
45. 1 may refer to ground ‘d’ of the impugned order, which reads as
follows:‑‑
“(d) Maladministration,
corruption and nepotism have reached such proportions in the Federal
Government, its various bodies, authorities and other corporations including
banks supervised and controlled by the Federal Government, the lack of
transparency in the process of privatisation and in the disposal of
public/Government properties, that they violate the requirements of the Oath(s)
of the public representatives together with the Prime Minister, the Ministers
and Ministers of State prescribed in the Constitution and prevent the
Government from functioning in accordance with the provisions of the
Constitution.”
It may be observed that ground ‘d’ is more or less identical to ground
cc’ and ground T(iii) and T(v) to that of ground ‘e’(ii) and ‘c’(iii) of the
grounds in the case of Ahmed Tariq Rahim (supra), wherein it has been held that
the above grounds themselves are not sufficient independently to warrant taking
of action under Article 58(2)(b) of the Constitution but they can however be
invoked, referred to and made use of alongwith grounds more relevant like
grounds ‘a’ and ‘b’ which corresponded to grounds ‘a’ and ‘c’ in the present
case (reference may be made to para. marked M at page 666 PLD 1992 SC in the
above case).
Mr. Khalid Anwar has pointed out that there is no concrete material on
record to support the above ground. I asked the learned Attorney‑General
to pin‑point the transactions of privatization in which irregularities/
mismanagement had taken place. Thereupon he submitted that in the case of
Muslim Commercial Bank the highest bid of Tawwakal Group was not accepted but
the third lowest bidder, namely Mansha Group, who is very close, to the
petitioner was asked to match the above highest bid and upon such
matching their bid was accepted. However, he conceded that there was no
monetary loss to the public exchequer. The second incident which he pointed out
was that eight cement factories were sold to above Mansha Group.
On the other hand, Mr.
Khalid Anwar has invited our attention to the fact that as many as 29 legal
proceedings inter alia in the form of Constitutional petitions were riled
against the privatization transactions but in none of the above proceedings the
respondents could establish any irregularity .or illegality warranting
interference by the Court. According to him, Mansha Group’s bid for M.C.B. was
accepted on account of their financial
standing
vis‑a‑vis to that of Tawwakal Group. He further pointed out
that the latter had riled a Constitutional petition in the Sindh High Court but
withdrew the same without getting the matter adjudicated upon.
As regards the cement factories, his submission was that the petitioner
had riled samples of biddings alongwith their rejoinder and it is open to the
federation to point out any irregularity. He has also pointed out that the,
World Bank in its report of 23‑3‑1993 had praised the privatization
and the economic performance of the petitioner’s Government in ‑the’
following terms:‑‑
‘(ii) Main Achievements.‑‑
‑As noted above, progress has been very strong in the private sector agenda, in particular
since the current Government came to power in late 1990. An ambitious
privatization programme was
launched with the aim to reduce the role of the public sector in manufacturing
and services, thereby alleviating the Government’s financial and administrative
burden and creating new opportunities for the private sector. So far about 67
industrial sector units and two of the four nationalized commercial banks have
been privatized. Successful measures were taken to deregulate the economy.
Investment sanctioning was virtually abolished, and the exchange system was
substantially liberalized. Areas of investment previously reserved for the
public sector were opened to the private sector. The ‘ financial sector was
drastically reformed. In particular, an auction
system for Government securities was instituted in early 1991, which ‘will make
the cost of public borrowing more transparent and deepen and widen the
securities market. as a preclude to open market operations; it has already
reduced financial dis intermediation. Trade policy measures were also taken to
promote efficiency and strengthen the export sector. Since FY 88, the maximum
tariff has been reduced from 225% to 90%, the import licensing generally
abolished, lists of banned and restricted imports pruned, and the import
surcharge integrated into the trariff schedule. The authorities have
complemented these structural reforms with a flexible exchange rate policy,
allowing the real effective exchange rate to depreciate by 14.3% between FY88
and FY92. In n)any respects,, these reforms
went significantly beyond what was originally envisaged. (ifi) Encouraged,
by these wide‑ranging reforms, private sector activity has strengthened,
as evidenced by strong GDP and export growth and rising private savings and
investment. Since FY88, GDP growth (at factor cost) has averaged some 5.5% p.a.
and real per capita GDP has risen by over 10%. Exports have expanded by an
average of 14% p.a. in volume terms (12’% in US dollars), facilitating the
liberalization of the trade and payments system. Private gross fixed capital
formation and gross domestic savings have gown from 7.7% to 9.4% of GDP and
from 10.5% to 12.2% of GDP between FY88 and FY92, respectively. Foreign
investment, both direct and portfolio, has also responded very favourably.
These are encouraging trends, indicating a gradual strengthening of the
underlying productive and savings base of the economy.”
Indeed
there are certain newspaper clippings riled by the Federation and six letters from the President’s
Secretariat addressed to the Cabinet Secretary,
Finance Minister, referred to: in Annexure ‘E‑3’ at page 411 of the documents rile of the Federation 11 to
point out certain irregularities/anomalies in the privatization but there is no
reliable material on the basis of which the above ground can be sustained, nor
the learned Attorney‑General
was able to demonstrate the same before us though we invited him to do so. Additionally, the above
irregularities are not of the nature .which
can have nexus to the reasons mentioned in sub‑clause (b) of clause (2)
of Article 58 of the Constitution.
The questions of maladministration, corruption, nepotism referred to’
in the above ground are also the subject‑matter of ground f(iii) and have
been dealt with herein below.
46. 1 may now take up ground ‘c’ which reads as follows:‑‑
The functionaries, authorities and agencies of the Government under the
direction, control, collaboration and patronage of the Prime Minister and Ministers
have unleashed a reign of terror against the opponents of the Government
including political and personal rivals/relatives, and mediamen, thus creating
a situation wherein the Government cannot be carried on in accordance with the
provisions of the Constitution and the law.”
In support of the
above ground, certain documents have been riled which are contained in the
federation’s documents rile 111, which include photostat copies of telegrams
addressed to the President (at pages 5 to 7 of the above file) from Mr. Naveed
Malik, alleging therein that at the behest of Messrs Nawaz Sharif and Shahbaz
Sharif, he was harassed/victimised; whereas at pages 8 to 11 there is a letter
from one Mian Bashir’ Ahmad, dated 5‑5‑1992 addressed to the
President on the letter head of Brothers Sugar Mills limited, alleging therein that they were denied
their due share in the joint business by manoeuvring and by misusing the
official position by the petitioner’s family. Then we have at page 18 a
newspaper clipping of daily “Dawn” of March, 1993, containing the statement of
Mr. lqbal Haider, the Information Secretary of the P.D.A., accusing the
petitioner violating the Constitution by ordering withdrawal of the cases. Then
we have a complaint from Mr. Ahmed Saeed Awan dated 11‑4‑1993
addressed to Mr. Fazalur Rahman Khan, Secretary to the President, alleging
victimisation by the Federal and Provincial Governments. There is also a
complaint from Mr. Rohail Asghar at page 52, Senior Political Correspondent, ‘Jang’,
Lahore, alleging harassment by the Government. There is yet another photostat
copy of a letter of one Rao Rashid of Lahore, dated 3‑11‑1991 at
pages 55 to 57, which is not legible but it seems that it contains allegation
as to involvement in the financial and other scandals of the Federal
Government.
The above allegations/complaints have not been investigated into by any
competent agency/forum in order to determine the truthfulness of the
allegations contained therein. If we were to accept such allegations and accusations
without ascertainment of truthfulness thereof for the purpose of dissolving the
National Assembly and dismissing the Cabinet, no Assembly or Government will be
able to stay in power for more than few months as the. making of such
allegations for mala fide reasons are not uncommon. These documents were not
even referred to by Mr. Aziz A. Munshi. I am, therefore of the view that the
above ground besides being not founded on any material worth consideration has
also no nexus with the reason mentioned in sub‑clause (b) of clause (2)
of Article 58 of the Constitution.
47. 1 may now refer to para. ‘17 of the impugned order which has rive
grounds, which read as follows:‑‑
In violation of the provisions of the Constitution:
(i)The Cabinet has not been taken into confidence or decided upon
numerous Ordinances and matters of policy.
(ii) Federal Ministers have
for a period even been called upon not to see
the President.
(iii) Resources and agencies
of the Government of the Federation, including statutory corporations,
authorities and banks, have been misused for political ends and purposes and
for personal gain.
(iv) There has been massive
wastage and dissipation of public funds and assets at the cost of the national
exchequer without legal or valid justification resulting in increased deficit
financing and indebtedness, both domestic and international, and adversely
affecting the national interest including defence.
(V) Articles 240 and 242 have been disregarded in
respect of the Civil
Services of Pakistan.
48. As regards ground
f(i), it may be stated that the above ground does not contain the particulars
of the Ordinances and matters of policy about which the Cabinet was not taken
into confidence. The President in his address of 22‑12‑1992 to the
joint session of the Parliament was satisfied with the legislative work of the
Parliament. The relevant portion of the English
translation reads as follows:‑‑ I
“Take the Parliament for example. The facts show that during the last
twelve months, each of the two Houses has discharged its legislative and other
responsibilities reasonably well. During this period, 95 Bills were presented
of which 35 were passed and the rest are at various stages of consideration.
Parliamentary Committees have been set up and are functioning satisfactorily.”
However, Annexure ‘R’ at page 628 of the Federation’s Documents File II
contains the list of Ordinances issued more than once (i.e. 2 to 8 times each)
which are 20 in number and were issued in 1991‑92. The Supreme Court has
recently in the case of Government of Punjab through Secretary, Home Department
v. Zia Ullah Khan and 2 others 1992 S C M R 602 has clarified the legal
position to the effect that an Ordinance cannot be repeated. Though an
Ordinance is to be issued on the advice of the Prime Minister but the President
could have sent back the same to the Prime Minister inter alia in exercise of
his power contained under Article 46 of the Constitution. Photostat copies of
the letters of resignations of the Federal Ministers/Ministers of State,
Advisors and Parliamentary Secretaries in the Federation Documents File 11 at
pages 101 to 123 do not contain any allegation that the Cabinet had not taken
them into confidence about certain Ordinances and matters of policy but from
the newspapers clippings, it appears that one or two Ministers who had
resigned, had raised a grievance to the effect that there was a kitchen Cabinet
for attending the important matters and they were not consulted. It may be
stated that in a parliamentary form of Government even in England, there is a
team of few Ministers, who are more close to the Prime Ministers than the other
Ministers and who are consulted more in the discharge of day to day functions.
Even if the above allegation of the above Ministers is true, they may have
individual grievance but the same cannot be made a ground for the purpose of
sub‑clause ~b) of clause (2) of Article 58 of the Constitution as it has
no nexus with the reason mentioned therein.
49. As regards para. f(ii), it may be mentioned that Sardar Asif Ahmed
Ali, ex‑Minister of State for Economic Affairs, in his resignation letter
undated addressed to the President, has alleged at page 140 of the above File
11 that “Both Mr. Shahbaz Sharif and Mr. Chaudhry Nisar made it abundantly
clear to me that they had made it a matter of their pride to confront the
President, The other Minsters were once again instructed not to call on the
President”. This allegation has been denied in the pleadings by the petitioner
and his counsel before the Court during the arguments. There were heated at
arguments on the’ question, whether the President can seek any information
directly from a
Minister instead of obtaining the same from the Prime Minister in terms
of Article 46 of the Constitution. The submission of Mr. Khalid Anwar was that
under clause (1) of Article 48 of the Constitution the President is to act in
accordance With the advice, of the Cabinet or the Prime Minister and,
therefore, a Minister has no Constitutional basis to furnish any
advice/information to the President. On the other hand, Mr. Aziz A. Munshi,
learned Attorney General has contended that under Article 91(l) of the
Constitution, a Cabinet of Ministers with the Prime Minister at its head is
constituted to aid and advise the President in exercise of his
functions as the executive authority of the Federation and, therefore, he is
entitled to seek information from a Minister without asking the Prime Minister.
To reinforce the above submission, he has invited our attention to clause (4)
of Article 48 6f the Constitution, which reads as follows:‑‑
“(4) The question whether
any, and if so what, advice was tendered to the President by the Cabinet, the
Prime Minister, a Minister or Minister of State shall not be inquired into in,
or by, any Court, tribunal or other authority.”
It is true that in the above‑quoted clause (4) it has been
provided that the question, whether any, and if so what, advice was tendered to
the President by the Cabinet, the Prime Minister, a Minister or Minister of
State shall not be inquired into in, or by, any Court,. Tribunal or other
authority and, therefore, one can urge that the’ advice’ can also be tendered
by a Minister. However, the Constitutional advice referred to in clause (1) of
Article 48 can only be tendered by the Cabinet or the Prime Minister: But,
there is nothing wrong if a Minister calls on the President socially or with
the object to furnish certain information to him which the President may need
in connection with some official matter. It is for the Minister concerned to
bring this fact to the notice of the Prime Minister, who being the Head of the
Cabinet, is entitled to be taken into confidence by Ministers while discussing
or talking about any official matter with the Head of the State.
I am of the view that the above ground mentioned in the above sub para.
has no nexus to the reason mentioned in sub‑clause (b) of clause (2) of
Article 58 of the Constitution.
50. Adverting to the ground mentioned in sub‑para. (iii) of para.
‘f’ it may be observed that this was not highlighted by the learned Attorney‑General
during the arguments but except the factum that Rupees thirty crores were taken
as a loan by the companies in which the petitioner’s family has interest from
Messrs. M.C.B. after its privatization. ,This fact has been averred by Mr.
Farooq Leghari, Deputy Leader of the Opposition, in his reference, dated ~11‑1‑1992
addressed to the Speaker (Federation’s documents File No.II at page 497
relevant at page 498), in which he alleged
that two Sugar Mills belonging to Ittefaq Group obtained in an illegal
manner a sum of Rupees 300 million as loan on 20‑8‑1991 from the
above bank through Cheques Nos.0306126 afid 0306151 in violation of the order
passed by a Division Bench of the Lahore High Court in Constitution Petition
No. 1121 of 1991. The charge‑sheet submitted by the combined Opposition
against the petitioner and the IJI Government referred to herein below at page
310 of, the Federation’s documents File III contains allegation that the
petitioner’s family’s borrowing from the Financial Institutions was Rupees 2.5
billion and that during two years of his incumbency, this has shot up 1000%. We
have also on record another reference (at pages 490 to 496) addressed to the
Speaker of the National Assembly by Mr. Salman Taaseer, Central Information
Secretary, P. P P. containing
allegations that the bid of the lowest. bidder for the construction of Motorway
between Lahore‑Islamabad was not accepted but the higher bid of Messrs.
Daewoo of South Korea has been accepted besides making payment of some,
additional’ amounts for designing etc. There is yet another reference
addressed to the Speaker by Mr. Abdul
Rashid Qureshi, Advocate, dated 11‑1‑1992 at pages 521 to 523
alleging therein that two members of Ittefaq Group of Companies, namely, Mian
Tariq Shari and Mian Rashid Rahirn obtained a sum of Dirharn 4 million each
from B.C.C.I., Dera Branch, Dubai, on 21‑2‑1989 when the petitioner
was the Chief Minister of Punjab, who allegedly allotted 343 Kanals forestry
land at Bhoorban at a given away price to’Mr. Zafar Iqbal, who was running
affairs of B.C.C.I. We have also a copy of the aforesaid charge‑sheet
submitted by the combined Opposition against the petitioner and IN Government
(at pages 304 to 442.of Federation’s documents File III) under the captions:
“Section (a) Fraud and corruption.
Section (b) Incompetence
of Nawaz Sharif Government.
Section (c) Disruption
of National Fabric.
Section (d) Failure
of foreign policy.
There are,‑ a, number’ of newspaper clippings in the Federation
documents File No.IV containing news items about irregular grant of contracts,
exorbitant expenses 0n foreign trips etc. There are also photostat copies of
documents on the Federation’s Documents File No.111 (at pages 254 to 284)
relating to the construction of road in’ Raiwind area. The allegation, is that
the above road was not constructed as claimed for the benefit of persons coming
to Raiwind for attending congregations for religious purposes but in fact it
was intended to provide benefit to Ittqfaq., Grqpp, who have their factories
near; Raiwind. It may further be observed that there are photostat copies of
documents at pages 443 to 472 of the above Federation, documents File No.111
allegedly indicating that with mala fide object. to facilitate profit making by
Ittefaq Group, the rates of customs duty etc. were reduced on the import of re‑rollable
scrap.
Mr. Aziz A. Munshi, learned Attorney‑General, while arguing on
the question of submission of 88 resignations by the M.N.As. to the President
instead of to the Speaker had invited our attention to documents marked N‑1
and N‑2 at pages 504 to 517 of the Federation’s documents File II. N‑1
indicates that in the year 1991‑92 Mr. Gohar Ayub, Speaker as M.N.A. for
Constituency NA‑13, for electrification of villages was given additional
quota of 46 villages from the Prime Minister quota and of others besides his
normal quota of 5 villages and in the year 1992‑93, additional quota of
11 villages. Whereas N‑2 shows that the Prime Minister in his
discretionary fund of Tameer‑e‑Watan out of total amount allocated
for N.‑W‑.F.P. Rs.14 million allowed Rs.10 million for Mr. Gohar
Ayub’s, schemes.
However, the basic question remains, whether mere allegations in the
form of complaints or news items without ascertainment of their truthfulness
are sufficient or above alleged special favours to Mr. Gohar Ayub to furnish a
ground in the order under Article 58(2)(b) of the Constitution. In other words,
the precise question for consideration is,. whether such irregularities can
have nexus to the reason mentioned in the above provision of the Constitution
or can they be subject‑matter of investigation in appropriate proceedings
under the relevant laws. In my view, the alleged irregularities/favours may be
subject matters of appropriate legal proceedings under the relevant laws, if
they constitute breach of such laws and are true, but such individual instances
cannot have nexus with the ground mentioned in the above provision of the
Constitution. However, if the corruption, nepotism and favouritism are on such
a large scale, that it resulted in the breakdown of Constitutional machinery
completely it may have nexus with the above provision.
51. As regards sub‑para. (iv) of ground ‘f, it may be stated that
the learned Attorney‑General has not specifically pointed out any
particular item except upon query from the Court, he submitted that’ donations
were made in crores of rupees by the petitioner for various project’s outside
the budgeted amounts though he was authorised to make grant out of his
discretionary amount of Rs.8,00,000 under the Privileges Act, 1975. This does
not seem to be the correct position. The above Act relates to the Prime
Minister’s Personal Privileges and has nothing to do with the Government’s’
schemes/projects. There are photostat copies of documents on record at pages
545 to 575 of the Federation’s documents File 11, indicating that a programme
of socio‑economic development under the name of “Tameer‑e‑Watan
Programme” was initiated. The Prime Minister’s discretionary fund to. the
extent of 10% out of the total budgeted amount was created which .is .evident
from the photostat copy of Joint Secretary (TWP)’s memorandum dated 12‑11‑1992
addressed to Mr. Mukhtar Ahmed, Financial Advisor (LG and RD), whereby advice
was sought for regularisation of the excess amount of Rs.6.724 million spent
under the discretionary grant of the Prime Minister, the total of which at 10%
was Rs.29.6 million of the budgeted amount of Rs.2916 million. There are
newspaper clippings already referred to hereinabove containing news items about
the expensive trips of the Prime Minister and the expenses incurred’ in holding
Seminars in the capitals of the foreign ‑countries for attracting foreign
investment.
it may be pertinent to refer to the President’s Secretary’s letter
dated 22‑3‑1993 addressed to Mr. Sartaj Aziz, Minister for Finance,
Islamabad, alongwith a confidential note, in which it has been alleged that the
Federation is defrauded and denied billions of rupees by smuggling racket run
under the patronage of. senior officials of the Central Board of Revenue and
Intelligence Bureau ‘.through the cover of Afghan transit trade (at pages 408,
409, 410 of the Federation documents File No.11).
There are also certain photostat copies of the articles appeared in
daily newspapers like an article under the caption “Adverse developments on
Economic front raised threat of hyperinflation” appeared in daily “Dawn” of 30‑1‑1993
contributed by one Mr. M. Ziauddin from Islamabad (at page .620 of Federation
documents File No.11). Then we have another article contributed by the, same
author in the daily “Dawn” of 17‑4‑1993 under the caption “Deficit
fears abound; gap estimated at 9.33 p.c. of GDR” (at pages 622 and 623 of the
above file). There is yet another article contributed by Dr. Ishfaq Oadri
published in the daily “The News”, Islamabad of 10‑4‑1993 under the
caption “Persistent . negative trend in trade and payment balance raises
serious economic implication” (at pages 624 and 625 of the above rile). There
is another photostat copy of a news item published in daily “Dawn” of 5‑4‑15K)3
on the basis of Bureau Report from Lahore under the caption “Punjab may face
deficit by next year, warns Minister” (at page 626 of the above file). Then we
have a photostat copy of daily “Dawn” of 29‑1‑1993 containing a
news item relating to the statement of Mt. Sartaj Aziz under the caption “Budget
deficit being trimmed, says Sartaj” (at page 627 of the above files. There are
some ,other newspaper clippings in other files.
It may be stated that if the petitioner bad made grants from his
discretionary quota of Tameer‑e‑Watan Programme, it does not in any
way show that he has, wasted the above money in the absence of any finding by
any competent forum to the effect that the grants made, by him were not in fact
utilized for the public purposes, for which they were made. The allegations
about. the extravagant expenses incurred on foreign trips and in organising
seminars. in foreign countries for attracting foreign investments are no mote
than Allegations contained in the newspapers without any facts and figures as
to the excess amount wasted and, therefore, not worth reliable. Besides as
stated’ above, while. dealing with ground (iii) of para. T hereinabove in para.
50 that such irregularities may form the basis for. some other appropriate
proceedings under the appropriate
laws, if they constitute breach of such laws and are true, but they cannot
furnish foundation for passing the impugned order. ,
Adverting to the deficit financing and indebtedness both domestic and
international, it may be stated that the articles or the news items referred to
hereinabove are the personal opinions of the authors. The Additional Secretary,
President Secretariat’s letter dated 27‑11‑1992 (Annexure ‘A‑10
at page 192 of the Federation’s documents File 11) indicates that a summary was
put up before the President in respect of the meeting of the Economic
Coordination Committee of the Cabinet held on 20th October, 1992, about
corporate restructuring, he recorded following minutes:‑‑,
“Monetary expansion arid inflation are the real problems. They must be
addressed urgently before they ‑‑ and, they are facets of the same
,coin ‑‑ get out of hand.”
It may again be observed that the World Bank in its report of 23‑3‑1993
appreciated the performance of Pakistan in the economic field, which is inter
alia reflected in the above quoted sub‑paras. on the World Bank’s report.
The petitioner has also filed Schedules with the petition containing
comparative figures for the Exports, Aggregate Market Capitalization, Aggregate
Market Capitalization of Stock Market Investment, Unemployment/ Under’
Employment, Direct Foreign Investment, Private Investment for a number of years
(at pages 80 and 81 of the petition File, Part 1). This has not been
specifically denied by the Federation in their written statement or in any
other document. I pointedly asked Mr. Aziz A. Munshi, learned, ‘Attorney‑
General, to point out mistakes or incorrect assertions contained in the above
comparative figures but he was unable to do so, on the plea that it was a
highly technical matter. According to the above comparative figures, the
economic performance of the Federal Government has not been bad keeping in view
the prevalent recession throughout the World including in the developed
countries like U.S.A. etc.
In the above factual background, the ground under discussion could not
have been pressed into service. Besides that I am of the view that the above
ground has no nexus with the. reason mentioned in above sub‑clause (b) of
,clause (2) of Article 58.
52. Refefrin to the . ground contained in para. f(vi), it may be
observed that Article 240 of the Constitution provides the method of
appointments in the service of Pakistan b’ providing that subject to the
Constitution the appointments to and the conditions of service of persons I in
the service of Pakistan shall be determined‑‑
(a)in the case of the services of the Federation, posts in connection
with the affairs of the Federation and All‑Pakistan Services, by or under
Act of Majlis‑e‑Shoora (Parliament); and
(b) in the case
of the services of a Province and posts. in connection with the affairs of a
Province, by or under Act of the Provincial Assembly.
Whereas Article 241 lays down that until Legislature makes a law under
Article 240, all rules and orders in force immediately before the commencing
day shall, so far as consistent with the provisions of the Constitution,
continue in force and may be amended from time to time by the Federal
Government or as the case may be by the Provincial Government.
The law relating to the method of selection ‘has been provided for
inter alia through the Federal Public Service Commission Ordinance (XLV of
1977), whereas for regulating the terms of service, Civil Servants Act, 1973
has ,been enacted. Under the former statute, a procedure of $election through
competitive examination has been evolved. However, there are certain rules
providing lateral induction into the civil service inter alia from the Armed
Forces.
The Federation’s documents File ,V contains photostat copies of a
number of newspaper clippings, wherein the reporters referred to the various
irregularities in the service matters. It may be stated that at page 9 ‘is a
clipping of “The News”, Islamabad of 2‑3‑1993 under the caption “Junior
VIP in civil service”, published the following news item:‑‑
“The civil bureaucracy has been enriched by four prominent sons of the
military and political leaders.
Though their induction in the district management group and the foreign
service was more or less carried out according to the rules. It is the
privileged background of these newly‑recruited officers that has raised
many eyebrows in the capital.
The first is the induction of Capt. Ali Nasir’, the son of Director
General, Inter‑Services Intelligence Directorate, Lt.‑Gen. Javid
Nasir. Capt. Nasir was inducted in the foreign service With a back date of two
months and hence he joined the foreign service academy when his batch‑mates
had finished two‑month training.
The other entrant is Capt. Murad Ashraf, the son of Corps Commander,
Lahore, Lt.‑Gen. Muhammad Ashraf.
The Corps Commander was one of the nominees of the Prime Minister for the
post of COAS when the post fell vacant early this year.
Of the two who have been inducted into the District Management Group
one is the, son of a retired Corps Commander of Lahore, Lt.Gen. (Retd.) Alam
Jan Masud for whom the former Prime Minister Benzazir Bhutto had recommended an
extension but that was not acceptable to Gen. (Retd.) Aslam Beg.
The fourth prominent gentleman to be. inducted into the DMG is Capt.
Safdar, formerly the ADC t( Prime Minister Nawaz Sharif and now his son‑in‑law.
Sources indicate that there appears to be a slight delay as Capt.
Safdar ,is yet to join the services though he is no longer the Prime Minister’s
ADC. His is another case of joining the services with back date.”
The above news item appeared repeatedly in the other newspapers under
different headings i.e. “The Muslim”, Islamabad of 20‑2‑1~03 (at
page 10) and the daily “The News”, Islamabad of 16‑2‑1993 (at page
71). News clipping of the “Nation”, Islamabad of 10‑8‑1992 relates
to news item under the caption “Yousuf Gul case P.M.’s order causes resentment”.
(The above documents are in Federation’s documents File IV).
Besides the above newspaper clippings the official record relating to
the induction of the above, incumbents into the superior service including the
orders of the competent authorities are contained in the Federation’s documents
File 11 at pages 194 to 226 (excluding the document at page 211).
The above Federation’s documents File 11 also contains a number of
photostat copies of other newspaper clippings, for example, at page 17 there is
a news item which appeared in “The News”, Islamabad of 18‑3‑1993
under the caption “Confusion over removal of 37 Taxation Officers by P.M.” Then
there is a news item appearing in the “Frontier Post”, Lahore of 20‑3‑1993
under the caption “C.B.R. Officers were probing Ittefaq Tax evasion”. The
latter news item was attributed to the Secretary‑ General of Pakistan
People’s Party (at In support of the
above ground, the Federation has filed photostat copies of page 37), Mr. Salman
Taaseer. Then there is a clipping of “The Nation”, certain newspapers clippings and certain correspondence between the
Islamabad of 19‑3‑1993 which carried a news item under the banner “Nawaz
orders suspension, arrest of 16 GCP officers” (at page 18). The news item I
gives the names and the reason to the effect that the above order was passed on
account of their involvement in the misappropriation of about Rupees 116
million.
There are other newspaper clippings carrying various news items about
the service matters like at page 27 relating to plum post, at page 30 under the
caption “CBR OSDs questions Chairman’s credibility’, at page 31 under the
caption “Connections outweigh merit in services”, at pages 51, 54 and 55 about
the transfer of the Director‑General, Health, Ministry of Health, at page
94 about ‘ 18 D.I.Gs. promotion for favouring some one, at page 94 “expenses
incurred on civil servants on foreign medical treatment”, at page 118 under the caption “PQA Chairman quits
in disgust, over corruption in organisation”, then at page 150 about increasing
posts in foreign Services, at page 179
“The News”, Lahore of 4‑3‑1991
carried the news under the caption “P.M. orders probe in the alleged
nepotism in PNSC”.
Barring the induction of the above rive incumbents in the civil service
to some extent in deviation and relaxation of the normal recruitment
rules/practices which allegation is supported by the official documents
referred to hereinabove, the other news items about the other alleged irregularities,
are not supported by any official record. Two of the. above items indicate that
the petitioner had ordered taking of action against corrupt officers. In the
case of Khalid Malik relating to the Dissolution Order of 1990, the High Court
of Sindh P L D 1991 Kar. I at p.48 found that as many as 26,000 persons were
inducted in service through the Placement Bureau in deviation of the
recruitment law/rules. The above deviation in respect of the five incumbents
cannot be equated with the above induction of 26,000 incumbents. Such deviation
may not be desirable for running an efficient civil service, but it cannot cause breakdown Of the
Constitutional machinery and, therefore, it has no nexus with sub‑clause
(b) of clause (2) of Article 58 of the Constitution.
,53. I may
now refer to ground ‘g’ of the impugned order, which reads as follows,
“(g) The serious allegations made by Beguni Nuzhat Asif Nawaz as to the
high‑handed treatment meted out to her husband, the late Army Chief of
Staff, and the further allegations as to the circumstances culminating in his
death indicate that the highest functionaries of the Federal Government have
been subverting the authority of the Armed Forces and the machinery of the
Government and the Constitution itself.”
In support of the above ground the federation has filed photostat
copies of certain newspaper clipping and certain correspondence between the
Secretary to the President and the Secretary to the Prime Minister, which are
contained at pages 227 to 229 and at pages 614, 617 and 618 in the Federation’s
16 documents File II. It may be observed that at page 227 there is a clipping
of the daily “News” of 12‑4‑1993 (marked as Annexure “A‑12”)
which contains the reporting of Mrs. Asif Nawaz, widow of the late General’s
Press Conference held on Sunday on 11‑4‑1993 at the Pearl
Continental, Rawalpindi, in which she alleged that her husband was poisoned and
had not died natural death. She also alleged that her late husband was
threatened by Chaudhry Nisar and Brig. lintiaz, ISPR Chief. She had also
referred to certain incidents which had taken place during the lifetime of the
late General. Then at page 228 there is a news item under the caption “No
comments, says ISPR’s chief’. Then at page 229 there is a clipping of “The
Muslim”, Islamabad of 28‑3‑1993 under the caption “Asif Nawaz did
not die natural death.
It may be stated that at page 614 there is a photostat copy of Mr
Fazalur Rehman Khan, Secretary to the President’s letter dated 12‑4‑1993
addressed to Prime Minister’s Secretariat (Qazi M. Alimullah, Principal
Secretary) stating therein that he was directed by the President to request the
Prime Minister to appoint a high level Judicial Commission consisting of the
Judges of the Supreme Court and High Court to inquire into the allegations at
priority basis and submit a report
alongwith their recommendations. Enclosed with the above letter is a photostat
copy of the clipping of “The News” of 12‑4‑1993. The above letter
was responded to by Mr. Qazi M. Alimullah, Principal Secretary to the Prime
Minister through his letter dated 13‑4‑1993, in
which it has been stated that the Prime Minister had taken immediate
suo motu cognizance of the allegations and appointed the Commission of Enquiry
promptly. This letter was responded to by Mr. Fazalur Rehman Khan, Secretary to
the President by his letter, dated 15‑4‑1993. It is a matter of
public knowledge that the Commission comprising three Judges of the Supreme
Court headed by Shaflur Rahman, J. was constituted, which has already submitted
its report. The contents of the above report have not been made public.
However, the statements of the Army Medical Personnel recorded by the
Commission and reported in the Press in verbatim indicate that as per their
version the late General died his natural death (God may bestow His choicest
blessing on the departed soul! Amin).
There appears to be no lapse on the part of the Federal Government in
this regard, as the Commission was constituted on 12‑4‑1993 on the
publication of the news in the press about the above Press Conference of the
widow of late Asif Nawaz and receipt of Mr. Fazalur Rehman Khan, Secretary to
the President, above letter without any delay. The above ground has no basis
nor it has any nexus with Article 58(2)(b) of the Constitution.
54. This leads us to the last ground contained in para. h which reads
as follows:‑‑
(h)The Government of the Federation for the above reasons, inter alia,
is not in a position to meet properly and positively the threat to the security
and integrity of Pakistan and the grave economic situation confronting the
country, necessitating the requirement of a fresh mandate from the people of
Pakistan.”
It may be observed that while dealing with ground V, I have pointed out
hereinabove in para. 35 that Mr. Sharifuddin Pirzada alongwith the Foreign
Secretary, Mr. Shaheryar Khan, in presence of the learned Attorney‑General
and the learned counsel for the petitioner had invited our attention to the
sensitive informations which the Foreign Office had received inter alia from
its
Embassies, which were allegedly not attended to by the petitioner as
per impugned order. I have allready observed hereinabove that I am unable to
subscribe to the view that there was any lapse on the part of the petitioner in
this regard. The above ground’ h’ containing ‑averment that the
Government of Federation for the reasons contained in the preceding paragraphs
inter alia is
not in a position to meet properly and positively the threat to the
security and integrity of Pakistan and the grave economic situation confronting
the country necessitating the requirement of fresh mandate from the people of
Pakistan is not founded on any tangible material. The economic performance of
the petitioner Government as pointed out hereinabove was not only complimented
by the President in his above address of 22‑12‑1992 to the joint
session of the Parliament but has been praised as late as on 23‑3‑1993
by the World Bank in its report, extract of which has already been quoted
hereinabove.
55. Before concluding the above discussion, I may observe that the
learned Advocates‑General, Punjab, N.‑W.F.P. and Balochistan,
Messrs Malik Maqbool Elahi, Sardar Khan and Raja Muhammad Afsar and the learned
Additional Advocate‑General of Sindh, Mr. Abdul Ghafoor Mangi, were also
heard by the Court though the applications riled by the Provinces of Punjab,
Sindh and N.‑W.F.P. to be impleaded as parties to the petition were
declined.
Besides supporting the arguments of the learned Attorney‑General,
their submission was that, it would not be‑possible for the Provincial
Governments to get on with the petitioner on account of strained relations
between the Federation and the Provinces, if the National Assembly and the
Cabinet would be restored by the Court. The above contention seems to be
untenable. In case of. any dispute between the Federation and a Provincial
Government, the Constitution provides mechanism in the form of Articles 184(l),
154 and 155. It may be stated that under the‑ above Article 184(l) a suit
can be filed in this Court in respect of any dispute between any two or more
Governments, whereas under Articles 154 and 155 the disputes of the matters
referred to therein can be brought before the Council of Common Interests.
If I were to accept the above contention of the learned Advocates General
and Additional Advocate‑General of Sindh, it will lead to absurdity as it
is not uncommon that in a general election a particular party may win most of
the seats of the National Assembly and another political party having a
different political philosophy may secure majority in the four Provincial
Assemblies. Will it be. legal or fair and proper to say that the Political
Party which succeeded in obtaining mandate of the people for forming the
Federal Government should not be allowed to form the Government as the
Political Party which secured majority in the four Provincial Assemblies cannot
get on with the former.
56. This leads us to the last submission of Mr. Aziz A. Munshi, learned
Attorney‑General that the grant of relief in exercise of Constitutional
jurisdiction is a discretionary matter even ‘where infringement of any of the
Fundamental Rights is involved and, therefore, this Court should not grant the
same as the controversy is going. to be resolved by the political sovereign
i.e. the people of Pakistan in the election of the National Assembly scheduled
to be held ~h 14‑7‑1993. He has pointed out that in the case of
Capt. Kanwaljit Singh v. Union of India A I R 1 , 991 Punjab and Haryana 54,
the case, of S.R. Bommai and others v. Union of India and others A I R 1990
Karnataka 5 and in the case of State of Rajasthan A I R 1977 SC 1361 the Courts
declined to restore the Provincial ~ Assemblies. The above cases are
distinguishable as in none of the above cases the impugned order was, found to
be without jurisdiction or not covered within the ambit of Article 356 of the
Indian Constitution. Even in India, Madhya Pradesh High Court recently restored
the dissolved Provincial Assembly and the dismissed Ministry, while rendering
judgment on 2‑4‑1993 in the case of Sunderlal Patwa v. The Union of
India and others) Misc. Petition No..237 of 1993).
As regards the question, whether the superior Courts have Any
discretion to decline relief in exercise of Constitutional jurisdiction in case
they rind infringement of a fundamental right, it may be observed that in the
case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others
PLD 1973 SC 236, Hamoodur Rahman, CJ. made the following weighty observations:‑‑
“An order in the nature of a writ of certiorari or mandamus is a
discretionary order. Its object is to foster justice and right a wrong.
Therefore, before a person can be permitted to invoke this discretionary power
of a Court, it must be shown that the order sought to be set aside has
occasioned some injustice to the parties. If it does not work any injustice to
any party, rather it cures a manifest illegality, then the extraordinary
jurisdiction ought not to be allowed to be invoked.”
The above observations related to an order in the nature of a writ of
certiorari or mandamus. The above principle that the object to grant
discretionary relief of writ petition is to foster justice and right a wrong
has been consistently followed by the superior Courts and above discretionary
relief has been denied when the Courts found that the grant of the same would
perpetuate injustice instead of advancing the cause of justice. The above
principle has been pressed
into service by this Court in the case of Wali Muhammad and others v.
Sakhi Muhammad and others P L D 1974 SC 106, the case of the Chief Settlement
Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331,
the case of Syed Nazim Ali etc. v. Syed Mustafa Ali etc. 1981 SCMR 231, the
case of Muhammad Umar v. Member, Board of Revenue and 9 others 1985 SCMR 1591,
the case of Messrs Norwich Union Fire Insurance., Society
Limited v. Muhammad Javed lqbal and another 1986 SCMR 1071, the ‑case
of Zameer Ahmad and another v. Bashir Ahmad and others 1988 SCMR 5 ‘ 16 and the
case of Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504.
. However, the question arises, whether the above principle which was
originally enunciated in relation to an order in the nature of a writ of
certiorari or mandamus can be pressed into service in a. case where
infringement of any of the Fundamental Rights is involved.
57. Mr. Khalid Anwar has referred to the case of Inamur Rehinan v.
Federation of Pakistan and others 1992 S C M R 563, the case of Daryao and others
v. The State of U.P. and others AIR 1961 SC 1457, the case of the Government of
East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan PLD 1966 SC 286, and the
case of Ram Singh and others v. The State of Delhi and another AIR 1951 SC 270,
wherein the importance of the Fundamental Rights has been highlighted and it
has been emphasized that relief should not be withheld.
On the other hand, Mr. Aziz A. Munshi, learned Attorney‑General,
has cited the case of Messrs Tilokchand Motichand and others v. H.B. Munshi,
Commissioner of Sales Tax, Bombay and another A I R 1970 SC 898 and the case of
Amrit Lal Berry and others v. Collector of Central Excise, Central Revenue and
others AIR 1975 SC 538.
The ratio of the above Indian Supreme Court cases seems to be that a
writ under Article 32 of the Indian Constitution is issued as a matter of
course if a breach of any fundamental right is established and that the Courts
would overlook technicalities, which are the hallmark of civil proceedings. But
at the same time the Court must not ignore and trample under foot all laws,
and, therefore, principles of res judicata and laches would be applicable and,
hence, inequality in the equitable balance brought into being by a petitioner’s
own laches and acquiescence cannot be overlooked. So also when the petitioner
is guilty of making misleading and inaccurate statement in ,the memo. of
petition, relief is to be denied.
58. 1 am inclined to hold that if a petitioner succeeds in establishing
breach of a fundamental right, he ~s entitled to the relief in exercise of
Constitutional jurisdiction as a matter ‘of course. However, the Court may
decline relief if the grant of the same, instead of advancing/fostering the
cause of justice, would perpetuate injustice’ or where the Court feels that it
would not be just and proper, for example, if the President dissolves the
National Assembly under Article 58(2)(b) of the Constitution and before the
Court decides the legality of such an order, elections take place which may
show that 70% voters have cast their votes against the political party which
was commanding the majority in the House before its dissolution and that it
could secure 2% or 3% only of the total votes cast, In such an event, it will
not be just and proper on the par(of the Court to defeat the will of the
political sovereign by reinstating the dissolved Assembly in spite of the above
verdict of the political sovereign against it overwhelmingly. I am prompted to
take the above view for the reason that the Courts are established for
dispensing justice. So if the grant of a relief for the enforcement of a
fundamental right or any other legal right instead fostering/ advancing cause
of justice, will perpetuate injustice, the Court will decline the same, In this
regard, there seems to be no distinction between the enforcement of a
fundamental right and a legal, right under a general law.
In the present case, I have found that the impugned order does not fall
within the ambit of Article 58(2)(b) of the Constitution. There is no justifiable
reason to deny the restoration of the National Assembly and the Cabinet with
thc Prime Minister. I would, accordingly, allow the above petition in terms of
the short order announced on 26‑5‑1993.
MUHAMMAD AFZAL LONE, J. ‑‑‑The last few months have
been a period of great political turmoil in the country. An atmosphere changed
with intrigue and confusion prevailed which led to speculations that the
elected Government headed by Mian Muhammad Nawaz Sharif would be dismissed and
the National Assembly dissolved. These speculations materialised when the
speech made by the Prime Minister addressing the nation on 17th April, 1993, on
electronic news media was on the following day, late in the evening followed by
the Presidential address and in a short span of 5 years, for the third time
Article 58(2)(b) of the Constitution was put into operation, the National
Assembly dissolved with immediate effect, the Prime Minister dismissed and a
direction given that the Cabinet would cease to hold office forthwith. Simultaneously
in exercise of the powers vesting in him under clause (5)(b) of Article 58 of
the Constitution the President appointed a Caretaker Cabinet headed by Mir
Balakh Sher Mazari.
2. In this petition, under Article 183(3) read with Articles 187 and
190 of the Constitution of the Islamic Republic of Pakistan, riled by Mian
Muhammad Nawaz Sharif, to which the President, the Federal Government, and Mir
Balakh Shcr Mazari have been impleaded as respondents, the dissolution order is
brought under challenge and the steps taken in implementation thereof including
the appointment of Care‑taker Cabinet are sought to be declared as null
void and of no legal effect. Two major issues falling for determination in the
petition are:‑‑‑
(1) Whether a question of public
importance with reference to enforcement of Fundamental Right No.17 has arisen;
and consequently the instant petition is maintainable?
(2) Whether the dissolution
order conforms to the requirements of Article 58(2)(b) which empowers the
President to dissolve the National Assembly in his discretion, where in his
opinion:‑‑‑
I
..a situation has arisen in which the Government of the Federation
cannot be carried on in accordance with the provisions of the Constitution and
an appeal to the electorate is necessary.”
Both the questions have been very ably examined in depth and answered
in favour of the petitioner, in the main judgment proposed to be delivered by
my brother Shaflur Rahman, J. I have availed of the benefit to go through it
and entirely agree with him. However, in view of the importance of the
Constitution and legal issues raised in this case; without much dilating upon
the facts, I deem it appropriate, to add my own note thereto.
3. Article 184(3) pertains to original jurisdiction of the Supreme
Court and its object is to ensure the enforcement of fundamental rights
referred to therein. This provision is an edifice of democratic way of life and
manifestation of responsibility casts on this Court as a protector and guardian
of the Constitution. The jurisdiction conferred by it is fairly wide and the
Court can make an order of the nature envisaged by Article 199, in a case where
a question of public importance, with reference to enforcement of any
fundamental right conferred by Chapter 1 of Part II of the Constitution is
involved. Article 184(3) is remedial in character and is conditioned by there
pre‑requisites, namely:‑‑‑
(i) There is a question of
public importance.
(ii) Such a question
involves enforcement of fundamental right, and
(iii) The fundamental right
sought to be enforced is conferred by Chapter
1, Part 11 of the Constitution.
The petitioner’s case is that under the impugned order fundamental
right guaranteed by Article 17 of the Constitution has been infringed. Besides
being violative of Fundamental Right No.17, the impugned order has also been
dubbed as mala fide, arbitrary, against the provision of natural justice and
Constitution. It is not disputed that the petition presents a very substantial
element of public importance and that Article 17 is listed among the
fundamental rights included in Chapter 1, Part Il of the Constitution. This
Article which bears the heading “Freedom of Association” is reproduced below:‑‑‑
“Freedom of association.‑(1) Every citizen shall have the right to form associations or unions,
subject to any reasonable restrictions imposed by law in the interest of
sovereignty or integrity of Pakistan, public order or morality.
(2) Every
citizen, not being in the service of Pakistan, shall have the right to form or
be a member of a political party, subject to any reasonable restrictions imposed by law in the interest
of sovereignty or integrity of Pakistan
and such law shall provide that where the Federal Government declares that any
Political Party has been formed or is operating
in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall,
within fifteen days of such declaration
refer the matter to the Supreme Court whose decision on
such reference shall
be final.
(3) Every political party
shall account for the source of its funds in accordance
with law.”
4. Mr. Khalid Anwar argued
that the right t9 form an association form a political party under Article 17
includes the right to continue its activity, propagate its programme and take
part in the election. In his submissions the political process does not stop
with the end of the election; in case a political party enjoys the support of
the majority in the House, it can form the Government and if it continues to
maintain majority, it has the riot to rule for full term of 5 years provided by
the Constitution and implement the mandate given to it by the electorate. It
was argued that formation of the Government is not the climax of the political
process started with the participation in the election, but the political party
succeeding at the polls has to carry out its policies put in its manifesto,
endorsed by the voters resulting in achieving majority in the House. Mr. Khalid
Anwar further relied on the Objectives Resolution made substantive part of the
Constitution and submitted that it guaranteed fundamental rights including “political
justice”.
5. On the other hand
the learned Attorney‑General endeavoured to canvass that dissolution of
the Assembly was not violative of the fundamental rights guaranteed by Article
17. He contended that the petitioner’s right to form a political party and to
continue to remain its member was not affected by the dissolution order and
reiterated that the petitioner could not claim the right to form Government or
to remain member of the National Assembly as a fundamental right. He further
urged that right to run Government for a period of 5 years in accordance with
the duration of the National Assembly fixed under Article 52 is merely a
Constitutional right, which cannot in any manner, be characterized as a
fundamental right. Mr. S.M. Zafar endorsed the argument that the duration of
the Assembly does not involve the fundamental right guaranteed by Article 17
which he pointed out, can be curtailed on the recommendation of the Prime
Minister and also by the President on dissolving an Assembly, under Article 58.
If any such right is violated, according to Mr. S’ * M. Zafar, the remedy lies
in invoking the jurisdiction of the High Court under Article 199 of the
Constitution. To explain the concept of “Political Justice” Mr. Zafar invited
our attention to “A Theory of Justice” by John Rawals and equated Ws doctrine
with “equal liberty”, discussed at page 223, photostat whereof has been
provided to us and invited our attention to the following passage:‑‑‑
“Three points concerning the equal liberty defined by the principle of
participation call for discussion: its meaning, its extent, and the measures
that enhance its worth. Starting with the question of meaning, the precept of
one elector one vote implies, when strictly adhered to, that each vote has
approximately the same weight in determining the outcome of elections. And this
in turn requires assuming single member territorial constituencies, that
members of the legislature (with one vote each) represent the same number of
electors.”
6. While construing Article 17 which guarantees fundamental right, ‑our
.approach should not be narrow and pedantic but elastic enough to march with the
changing times and guided by the object
for which it was embodied in the Constitution as a fundamental right. Its
full import and meaning must be gathered from other provisions such as preamble
of the Constitution,, principles of policy and the Objectives Resolution, which
shed luster on the whole Constitution. Reference in this connection may be made
to the observations made by Muhammad Haleem, C.J. (as he then was) in Benazir
Bhutto v. Federation of Pakistan PLD 1988 SC 416 at 489:‑‑‑
..while construing Article 184(3), the interpretative approach should
not be ceremonious observance of the rules or usages of interpretation, but
regard should be had to the object and the purpose for which this Article is
enacted, that is, this interpretative approach must receive inspiration from
the triad of provisions which saturate and invigorate the entire Constitution,
namely, the Objectives Resolution (Article 2A), the Fundamental Rights and the
directive principles of State policy so as to achieve democracy, tolerance;
equality and social justice according to Islam.”
7. In every democratic
set‑up, in the world, the political parties compete for the right to form
a Government. It is the basic assumption of Parliamentary democracy that the
party winning a majority of seats in the House ~ should have complete control
of Government. Fl or democracy gives the majority the right to rule.
Constitutionally, this power, admits of no impediment. in British politics the “doctrine
of mandate” signifies that the party which wins the general election has the
right to implement its programme. In fact it is true of every country following
Parliamentary democracy. If a party attaining power fails to give effect to its
manifesto it may be accused of deluding the electorate in catching the votes.
It may be observed that for an effective, functioning of a political system,
the dominant institutions catered thereby though geared by the idea of
contemporary I social attitudes must not be oblivious of moral and historical
aspirations of the nation. The reasons being that neither Constitutional
principles nor political attitudes can properly be appreciated without
understanding their roots in the historical experiences of the society. In this
behalf the Objectives Resolution (Art. 2A) represents such attitudes, ethos,
and values behind our Constitution, which in so far as relevant for the
purposes of this case is reproduced below:‑‑‑
“Wherein shall be guaranteed fundamental rights including equality of
status, of opportunity and before law, social, economic and political justice
and freedom of thought, expression, belief, faith, worship and association,
subject to law and public morality.”
it may be observed that the term “political justice” is flanked by
other rights enumerated in this clause. These are all fundamental rights,
analysed below:‑‑‑
Equality of citizens -----------------------------Articles 14 and 25
Equality of opportunity ------------------------Article 18
Equality before law -----------------------------Article 4
Social justice -------------------------------------Articles 11 and 14
economic justice ---------------------------------Article 18
Political justice-----------------------------------Article 17
freedom of thought ,freedom of speech-------Article 19
Freedom of liberty, faith and worship--------Article 20
freedom of Association--------------------------Article 17
In construing this clause Zafar Hussain Mirza, J. in Benazir Bhutto’s
case at page 616 of the report took the view, with which I respectfully agree:‑‑‑
“The expression ‘political justice’ is very significant and it has been
placed in the category of fundamental rights. Political parties have become a
subject‑matter of a fundamental right in consonance with the said
provision in the Objectives Resolution. Even otherwise, speaking broadly our
Constitution is a Federal Constitution based on the model of Parliamentary form
of representative Government prevalent in United Kingdom. It is also clear from
the Objectives Resolution that principles of democracy as enunciated by Islam
are to be fully observed. True and fair elections and the existence of
political parties, is an essential adjunct of a functional democratic system of
Government.”
8. In the Black’s Law Dictionary (1979
Edn.)the expression ‘political rights’
is defined as under:‑‑‑ ‘
“Those which may be exercised in the formation or administration of the
Government. Rights of citizens established or recognized by constitutions which
give them the power to participate directly or indirectly in the establishment
or administration of Government.”
We may add that the concept of political justice will also include the
right to participate in political decision‑making. Thus illegal and
unconstitutional denial to the petitioner to run the Government as long as he
enjoyed the support of the majority in the House ‑, will be the denial of
political justice guaranteed by Article 17.
9. Mr S‑M Zafar’ reliance on John Rawals political philosophy
concerning the concept of political justice
the necessary corollary that “cash vote has approximately the same
weight in determining the outcome of elections” seems to have been overworked.
Justice as fairness is the key note of the political philosophy of American
Professor John Rawals, who in no small measures was influenced by the work of
the German thinker Immanull Kant and himself maintained that his concept of
justice had historical roots. For grasping the criterion of justice offered by
Rawals, the Political ideology prevailing in Europe during middle ages nay,
till early 20th century needs to be kept in view:‑‑‑
“In a, medieval barony, for instance, the lord and his knights, the
yeomen, and the serfs belonged to a single political system, but had very
different rights and duties. The knights and yeomen owned obedience to the lord
and were pledged to fight for him‑the knights on horseback, the yeomen on
foot. The serfs, who performed manual labour, were bound to the soil and
forbidden to bear arms ... .... ... ... ... ... ... ... In England and Germany,
universal manhood suffrage was not achieved until the second half of the
nineteenth century. The Prussian Landtag retained its three‑class voting
system until 1918. Voters were ranked by amounts of tax paid, and divided into
three groups, each paying one‑third of the taxes. The first group
consisted of a few large landholders and industrial proprietors, the second
embraced the relatively small upper middle class, and the third included the
majority of petty bourgeois, small farmers and workers. (Article 71 of Prussian
Constitution of 1850 Dennewitz, 1948, p. 81). This device assured a permanent
majority representing the landlords and the upper middle class.” (See Victims
of Politics by Kurt Glaser Stefan T. Possony, page 349, 1979 Edn., published by
Columbia University Press, New York).
Philip Pattit, Professor of Philosophy in University of Bradford, in
his work ‘Judging Justice’ on detailed analysis of the charter given by Rawals
for organising the society, did not endorse the same and termed it as somewhat
sketchy. The theory propounded by Rawals has also been criticised by David
Lyons in his work “Ethics and the Rule of Law”. It is, therefore, difficult to
agree with the concept of political justice advocated by Mr. S.M. Zafar. Such
being the position in law, there is no valid basis to sustain the objection to
the maintainability of the instant petition which on account of infringement
of Fundamental Right No.17 lies before
the Court.
10. We may now move to
the second issue. The First ground reflected by the dissolution order is that m inisters , Members of the Opposition as well as the treasury bench red their resignations in mass scale demonstrating their desire to A fresh mandate from the people.
That this dissension as well
nullified the mandate
11. Under article 64 of the constitution, a Member may by writing under
his hand addressed to the speaker or as the case may be, the Chairman resigns
his seat, and thereupon his seat shall become vacant. Rule 25 of the Rules of
Procedure and Conduct of Business in the National Assembly, 1992, provides that
such a letter of resignation is to be handed over by the Member to the Speaker
personally and also to convey him that the resignation is voluntary and genuine
and the Speaker has no knowledge and information to the contrary. If the letter
of resignation is received by the Speaker by any other means, he after such
inquiry as deemed fit that the resignation is voluntary and genuine, is bound
to inform the Assembly of the resignation. Thereupon the Secretary ‑General
shall get it to be published in the Official Gazette in the Notification to the
effect that the Member has resigned the seat and forward a copy thereof to the
Chief Election Commissioner. Rule 25 further enjoins that date of resignation
shall be the date specified in such writing and if no date is specified
therein, the date of its receipt by the Speaker.
12. We have noticed that the resignations are 88 in number, all
addressed to the Speaker of the National Assembly, but were handed over to the
President. The reason for delivering the resignations to the President, instead
of the Speaker, as spelt out from para. 3(iii) of the written statement, is
that the Members wanted to register their protest with the Head of the State,
as there was lack of confidence in the National Assembly, the Speaker and the
Federal Government. That the Speaker did not, in the past, take action upon any
motion directed’ against the Prime Minister or Minister or Member of the
National Assembly, supporting the Government. According to the general
perception he was in collusion with the Prime Minister, was not acting
independently and had ceased to be impartial.
13. According I to . para. 3(1) of the written statement, the President
received total number of 88 resignations from the Members of the National
Assembly; that there were 12 existing vacancies caused by previous resignations
and another by the death of a member; the total number thus arose to 101,
leaving 106 members out of the House of 217. From this, in the written statement,
an inference was drawn that the Members had lost confidence in the Federal
Government headed by the petitioner. It is discernible from the record before
us that out of 88 resignations, 73 are undated and only 15 bear the dates. The
resignation of Mir Altaf Khan Bhayo, M.N.A. from Shikarpur (Sr.No.21) is dated
3rd November, 1990. It has not been refuted before us that despite sending a
letter of resignation, this Member has been attending the Sessions of the
National Assembly over a period of 2‑1/4 years. These 73 letters of
resignations do not give any indication as to when the Members concerned put
their signatures thereon.
14. In the course of
his submissions, Mr. Khalid Awnar pointed out that the resignations appearing
at pages 76 to 83 of the file pertain to the Members from FATA administered by
the President. He asserted that all these resignations are in the same hand and
scribed by the same pen and expressed curiosity that all the Membem of FATA
tendered their resignations en bloc on the same date. In the submission of Mr.
Khalid Anwar, Mrs. Benazir Bhutto called on the President on 18‑4‑1993;
in the course of meeting she wrote her resignation on a plain paper and passed
on the same to the President alongwith that of other Members of the Assembly
belonging to PPP. On perusal of the letters of resignations at Serial Nos. 2,
4, 5, 9, 16 and 18 we have noticed that these are couched in the same language
and scribed by the same person. There are some other letters of resignations
which bear the same attributes. The learned counsel expressed the grievance
that the respondent is a symbol of unity of the Federation and supposed to be
above party politics, but the manner in which he collected the resignations, is
indicative of his collaboration with the leader of the opposition and other
dissentient groups in the National Assembly; and that such exercise of power is
highly unconstitutional. In order to
establish that a conspiracy was hatched against the Federal Government and the
respondent’s blessings were extensively extended to the disgruntled elements
both inside and outside the House, the learned counsel drew our attention to
several Press clippings contained in Part II of the Paper Book,
forming part of the petition. Some of these clippings are: The Daily
News dated 14‑4‑1993 (page 98), The Daily News, dated 7‑4‑1993
(page 101), The Frontier Post, dated 7‑4‑1993 (page 106), The Daily
News dated 8‑4‑1993 (page 115), The Dawn dated 6‑4‑1993
(page 139), The Nation, dated 3‑4‑1993 (page 145), The Times dated
16‑2‑1993 (page 163), The News dated 16‑2‑1993 (page
165), The Nation, dated 6‑3‑1993 (pp. 194 and 195), The Nation,
dated 7‑3‑1993 (page 197), The Dawn dated 25‑3‑19913
(page 205), The News, dated 25‑3‑1993 (page 206), The Nation, dated
29‑3‑1993 (page 210), The Nation, dated 30‑3‑1993 (page
213), The News dated 31‑3‑1993 (page 214). From these Press
clippings an inference was justifiably sought to be drawn the learned counsel
that the respondent did not act impartially and
extended an active cooperation to the opposition and other dissatisfied,
t. elements, which was highly objectionable and against the spirit of the
Constitution. It was specifically urged that the Pakistan Muslim Legal
Parliamentary Party, which has majority in the House, passed a Resolution to do
away with certain parts of the Constitutional Eighth Amendment. The moment this
decision was taken, the President thought of. the device of collecting
resignations to muster political power and even indulged in horse trading to
act as a counter blast.
15. The learned Attorney‑General was confronted with Article 64
and the Rule 25 under which resignation in writing under the hand of the Member
concerned addressed and delivered to the Speaker, if genuine and tendered[
voluntarily, is sine qua non for its effectiveness. It was pointed out to him
that, these letters of resignations were addressed to the Speaker, but never
passed on to him and, thus, the Constitutional requirements were not fulfilled.
The learned Attorney‑General in his submissions made on 15th May, 1993,
categorically asserted that these resignations were given to the President by
the Members concerned, to record their protest and not beyond that and thus
their seats did not fall vacant. It
was argued that upon these letters of resignations, the President could well
formulate ‑his opinion for the
purpose of Article 58(2)(b). He, however, conceded that in the normal
course these resignations should have been handed over to the Speaker, but the
President had no control over the Members, and when the resignations were placed before him he kept the same
with him. It was put to the learned Attorney‑General that by handing over
the letters of resignation to the President, without losing their seats the
Members of the opposition and other Members intended to blackmail the
Government, to which no plausible reply forth came from him. In a reply to the
question, as to why the resignations were not handed over to the Speaker, the
Attorney‑General submitted that the Speaker had lost the confidence of
the Members and became partisan and pointed out that at least three petitions
for a reference against the Prime Minister were not forwarded by him to the
Chief Election Commissioner in pursuance of Article 63(2) of the Constitution.
On 23‑5‑1993, when the case was taken up for hearing the learned
Attorney General carne forth with an altogether different stand that the
resignations were tendered by the Members not merely as a protest, but even to
vacate the seats held by them. The attention of the learned Attorney‑General
was drawn to para. 15(3)(iii) of the written statement, which clearly depicted
that the resignations were submitted to the President merely as a mark of
protest. These resignations speak volumes about. the public representatives’
conduct shorn of political morality. It is our misfortune that after the expiry
of vanguard of the freedom movement, politics became a means of somehow or
other entering into power and retaining the same by fair or foul means. The
desire of sharing fruit of the power keeps people together in the party but
disappoint and disgust may result in change of party affiliation.. Floor‑crossing,
repeated marches and counter ‑marches for political gains to which our
attention was drawn by the learned counsel for the petitioner, have become the
order of the day. It seems to us that motivational force behind these
defections and redefections is the prospects of political power, promise of the
award of the office and other official patronage. These factors have directly
led to political corruption and indiscipline in the political parties. It is
unfortunate that there is a wide gap between the practical politics and the
model of democratic processes, which the chosen representatives of the people
required to exercise authority within the limits prescribed by Almighty Allah,
need to project.
16. Upon evaluation of the respective arguments of the parties, we feel
that the contentions of the learned Attorney‑General seemingly, do not
outweigh the arguments advanced on behalf of the petitioner. As already
observed, the letters of resignations were addressed to the Speaker, except
those tendered by the Ministers, which is the essential requirement of Article
64. Conceivably, there was no legal or Constitutional justification for receipt
and then retention thereof by the respondent. If at all these were presented to
the respondent in all fairness in adherence to the provision of the
Constitution and the law laid down by this Court in Mirza Tabir Beg v. Syed
Kausar Ali Shah (PLD 1976 SC 504) he should have forwarded the same to the
Speaker. Such a mode of tendering the resignations and then retention there or
by the President is a sheer perversion of the Constitution and no concomitant
of the legitimate “pressure politics” known to the Parliamentary system of
Government. Encouraging of such tactics may become an effective vehicle of
blackmailing the party in power, resulting in subversion of the Parliamentary
democracy in the country. We hold that within the ambit of Article 58(2)(b)
this ground was not at all available.
17. On 14‑4‑1993 the Prime Minister met the President. The
meeting lasted for about two hours. However, what transpired in the meeting,
the version given by the two is not identical. The President’s House issued a
Press Release on the same date to the effect:‑‑
“The President urged the Prime Minister to undertake positive steps as
early as possible to address effectively these problems to the satisfaction of
the public representatives and the people. The Prime Minister undertook to do
so on an urgent basis and to revert to the President with precise measures in
this behalf.”
The draft of the minutes of the meeting prepared by the Prime Minister’s
House, but not issued as the President’s House did not approve it, is
reproduced below:‑‑
“During the two‑hour meeting the President and the Prime Minister
went into the causes of the prevalent political situation in the country and it
was agreed that necessary measures would be taken to defuse it.
Referring to speculations, discussions and debate on the 8th Amendment,
the Prime Minister informed the President that the issue was well behind us. He
said the recent statement of three Federal Ministers in his behalf fully
reflected his own views.
Discussing the various policies and programmes of the Government, the
Prime Minister said he valued the President’s guidance and counsel and looked
forward to his continued advice at various stages of their formulation and
implementation. It was agreed to bring about improvements in the functioning of
the Government, wherever necessary.
It was also agreed that such meetings and consultations will be held
more frequently to ward off speculations and avoid misunderstandings,
The two agreed that efforts should be made to win back friends and
colleagues who have left the Cabinet as a result of misunderstandings and
differences. They hoped that most of them will be bark before long,”
Three days later on 17‑4‑1993, as already observed, the
Prime Minister addressed the nation on the television. His speech was
simultaneously relayed on Radio. The relevant portions of the speech are quoted
in the proposed judgment of my learned brother Shafiur Rahman, J. The second
ground of the dissolution order is founded on this speech and runs as under:‑‑
“... the Prime Minister in his speech on 17th April, 1993, chose to
divert the people’s attention by making false and malicious allegations against
the President of Pakistan who is Head of State and represents the unity of the
Republic. The tenor of the speech was that the Government could not be carried
on in accordance with the provisions of the Constitution and he advanced his
own reasons and theory for the same which reasons and theory, in fact, are
unwarranted and misleading. The Prime Minister tried to cover up the failures
and defaults of the Government although he was repeatedly apprised of the real
reasons in this behalf, which he even .accepted and agreed to rectify by
specific measures on urgent basis. Further, the Prime Minister’s speech is
tantamount to a call for agitation and in any case the speech and his conduct
amounts to subversion of the Constitution.
It appears, that all was not well in the meeting of 14th April, 1993.
This is substantiated by the divergence in the Press Note released by the
President’s House and minutes of the meeting prepared on behalf of the Prime
Minister. The matter was simmering and culminated in the speech dated 17‑4‑1993.,
Mr. Khalid Anwar read out to us several portions of the speech and urged that
it made reference to disgruntled elements which gathered around the President,
conspired against the Prime Minister, indulged in horse‑trading
and even acclaimed replacement of the Prime Minister. In his endeavour to
analyse the speech, he emphasised that its object was to enlighten public
opinion and not the vengeance against those who changed party affiliation or
otherwise joined hands against the petitioner. In the estimation of Mr. Khalid
Anwar, the
speech demonstrated a reconciliatory tone though reflective of a
determination when the Prime Minister uttered that “I shall not resign, I shall
not dissolve the Assembly, I shall not take dictation”, and then asked the
nation that Konsa Rasta lkhtiar Karna Hey”. He remarked that the Prime
Minister’s position was like that of a person forced to fight with his back to
the wall. The learned counsel regretted that tile Prime Minister of the Country
was accused of subversion of the Constitution amounting to high treason under
Article 6 of the Constitution, for which there was absolutely no warrant. When
asked that the Prime Minister himself having adopted the reconciliatory
attitude, what was the need for delivering the speech which generated lot of
controversy, the learned counsel stated that the Muslim League Parliamentary
Party passed a
vote of confidence, in favour of the Prime Minister authorising him to
take steps for repeal of the Constitution 8th Amendment, which annoyed the
President and ignited the whole trouble. He further submitted that under the
Press Release of 14th April ‘ 1993 the Prime Minister was required to take
positive steps to address the problems of the public representatives. In this
respect the meeting of the National Assembly, in pursuance of Article 54(3),
was requisitioned for 19th April, 1§93, to which wide publicity was given on
the public media, but the President designedly frustrated the meeting and
dissolved the Assembly on 18th April. The learned counsel contended that the
President had a wrong perception that the steps were being initiated‑
before the house for his impeachment.
18. The learned Attorney‑General took a strong exception to the
contents of the Prime Minister’s speech and termed it as highly provocative and
insulting to the President, who was also accused of hatching conspiracy, and
indulging in blackmailing and horse‑trading. According to the learned
Attorney‑General the President was virtually impeached; that the right
course for the Prime Minister was to have addressed the National Assembly as in
that case, the scandalous remarks could have been expunged by the Speaker. He
submitted that the things were not in such a bad shape and in fact on the Prime
Minister’s move to call a meeting of the’ National Assembly, the President
signed the order for requisitioning the meeting for 22nd April, 1993 (but not
issued). That in the evening on the 17th April the Prime Minister delivered the
speech levelling all sorts of wild allegations against the President, leaving
no option for him, but to dissolve the Assembly. The learned Attorney‑General
then highlighted the relationship between the President and the Prime Minister
and read out Articles 41, 46, 48 and also made a passing reference to Articles
177 and 193, to state that if for any reason the processes of advice and
consultation, between the Prime Minister and the President were rendered
impossible, the national affairs would not be carried on, in accordance with
the provisions of the Constitution. In his opinion, the cordial relationship,
so essential for smooth running of the Country, between the two pillars of the
State power was clearly missing, resulting in a deadlock, for the resolution
whereof resort to Article 58(2)(b) became inevitable.
19. The learned Attorney‑General made a good deal of effort to
persuade us that the grounds mentioned in the dissolution order subsisted which
necessitated invocation of Article 58(2)(b) by the President. But his lengthy
arguments conveyed an unequivocal impression that the Prime Minister’s speech
if not the sole at least was the major cause’ of dissolution of the Assembly.
In fact at one stage, as noticed earlier, he himself attributed the dissolution
order wholly to the firy nature of the speech of 17th April, 1993. question
arises was there any justification for such a speech? Our answer is in the
affirmative. The reason being that an atmosphere of mistrust, confusion and
political uncertainty loomed larger in the Country which not only jeopardized
the democratic processes, destabilized the economic activities but also tended
to make the country a laughing stock at the international level. It was not
only necessary but obligatory for the Prime Minister to have taken the nation
into confidence and kept it abreast of the regrettable developments taking
place on the political scene which in his estimation were destructive of
democratic processes in the Country. Even otherwise, the Government is the
major source of information, which in the democratic set‑up, it is duty
bound to dissiminate, for public awareness, to enable them to adjudge the
conduct of those who are in office and the wisdom and folly of their policies.
Reference at this stage be made to the remarks made by Churchill, in 1932
reproduced at page 17 of “Party Politics” (Vol.11) by Sir Ivon Jennings:‑‑
“... tell the truth to the British people. They are a tough people and
a robust people. They may be a bit offended at the moment, but if you have told
them exactly what is going on, you have insured yourself against complaints and
reproaches which are very unpleasant when they come home on the morrow of some
disillusionment.”
The right of the citizenry to receive information can well be spelt out
even from the “freedom of expression” guaranteed by Article 19 of the
Constitution, of course, subject to inhibitions specified therein. Such right
must be preserved. Thus, as head of the Government it was the essential
responsibility of the Prime Minister to cultivate knowledge in the populace and
to enlighten them about the burning issues. We may start here with advantage
the words of Whig leader, Lord Hartington quoted at page 6 of the book “The
People and the Party System” by Vernon Bogadanor on the subject of electoral
reforms in British policies. During the debate on first Home Rule Bill in 1886,
he insisted that the electorate must be consulted in the matters involving
Constitutional changes and complained of the Glandstone’s failure to do so:‑‑
“Although no principle
of a ‘mandate’ may exist, I maintain that there are certain limits which
Parliament is morally bound to observe, and beyond which Parliament has morally
not the right to go in its relations with the constituents. The constituencies
of Great Britain are the source of the power, at all events, of this branch of
Parliament and I maintain that in the absence of an emergency that could not be
foreseen, the House of Commons has no more right to initiate legislation ‑‑
of which the constituencies were not informed, and,, as to till which if they had been so informed, there is,
at all events, the very greatest doubt as to what their decision might be.”
20. The learned Attorney‑General’s argument that the Prime
Minister could have delivered the speech in the House is much off the tangent.
The speech was meant for the polity and carried a message for the nation. It,
therefore, could not have been confined to the four walls of the Parliament
House. This issue may also be examined from another angle. Supposing a
President is to be removed from office or impeached on a charge of violating
the Constitution or gross misconduct, in contemplation of Article 47 of the
Constitution. Under clause 5 of this Article the Speaker is bound to summon the
two Houses to meet in a joint session not earlier than seven days and later
than fourteen days after the receipt of the notice of removal or impeachment,
as the case may be. Such an issue being of great importance, the
Members of the Parliament may have to visit their constituencies in far flung
areas to consult the electorates. Evidently this exercise cannot be
accomplished within the lime limit specified in this Article. The campaign
shall have to be started both inside and outside the Parliament, much earlier
than the delivery of such notice to the Speaker.
21. Much has been said before us by the learned Attorney‑General,
on the lack of working relationship and consequential deadlock between the
President and the Prime Minister. We may observe that this deadlock is not due
to any Constitutional inadequacy. Our Constitution is a comprehensive document
and the remedy for this so‑called deadlock is not to be looked elsewhere
but in the Constitution itself. It cannot be said that the Constitutional
prescription does not measure up to the political reality in the country. The
Constitution is not at all at fault. Perhaps the fault lies with those who are
entrusted with its faithful implementation and have taken the oath to protect,
defend and preserve the Constitution. The Prime Minister claimed majority in
the House and he said so even in his speech. Conversely, the President held in
hand 88 resignations which in his opinion sufficiently suggested that the
National Assembly ceased to reflect the will of the electorate. In such a
situation the catastrophe would have been avoided by resort to Article 91(5)
and the Prime Minister asked to establish his majority and obtain a vote of
confidence from the Assembly but L the President was ill‑advised to
dissolve it. The speech could not be made a
lawful basis for dissolution of the Assembly.
22. If politics is indispensable, the politicians too are unavoidable.
If they do not talk to one another, someone else must talk to all of them. In
fact reconciliation and articulation of differences is not uncommon in
politics. Those who in the past publicly expressed animosity against the
President, are now, as argued at the Bar, frequent visitors to the President’s
House. Not only this, even those against whom the President had himself chosen
to file References in the Courts on a variety of charges, were inducted by him
in the Care‑taker Cabinet. In his public address of 18th April, 1993, the
President himself gave out that he was above his personal criticism. Before us
Mr. Khalid Anwar clearly affirmed that the Prime Minister did not nourish
grudge against the President and in the interest of the country the two would work
together. We entertain no doubt that inculcation of working relationship
between them is not an impossibility. Suppose fresh election is held and the
petitioner again comes into power, what will then happen to the relations
between the two? Will the President again dissolve the Assembly, for the reason
that the Prime Minister cannot pull on with him? Evidently, this is not the
solution of the problem. Its solution lies in exercising tolerance and
operating faith fully within the parameter of the Constitution. We can do no
more here than to refer to Lord Hailsham’s unabashed advice to the
conservatives to readily adopt the policies of opponents when this is
tactically desirable:‑
“There is nothing immoral or even eccentric in catching the Whigs
bathing and walking away with their clothes. There is no copyright in truth, and what is controversial politics
at one moment may after experience and reflection easily become common ground.”
(See “Do Parties Make a Difference” by Richard Rose ‑ page 13).
It is sad that the Prime Minister of the country was accused of
subversion of the Constitution. In this respect I respectfully agree with the
view expressed by my borther Shariur Rahman, J. in his proposed judgment. Under
Article 5, obedience to Constitution and the law is the inviolable duty of
every citizen. Article 2A enjoins full observance of principles of democracy
and tolerance as enunciated‑ by Islam. It is lamentable that there is
much to be desired in adhering to these provisions, even at high level, which
are so essential for growth of democratic values and our national, solidarity.
23. The President in his speech dated 18th April, 1993 has given the
reasons supplementing the grounds on which the dissolution order is rested,
adversely commented upon the speech of the Prime Minister, bitterly criticised
the economic and foreign policies of the Federal Government and the manner in
which ‘privatization’ has been conducted; referred to the lack of social
justice and the problems of dearness facing the sections of the society
financially not well off and the Government’s failure to comply with the
requirements of Articles 154 and 160 6f the Constitution relating to the
Council of Common Interests and National Finance Commission. Mr. Khalid Anwar
drew a comparison between the speech and the two earlier addresses of the
President dated 22nd December, 1992 and 19th December, 1991 delivered in the
joint session of the two Houses of the Parliament. He submitted that the speech
lacks generosity and vision and is diametrically opposed to the assessments
previously made by the President, of the achievements of the Government.
Analysing the speech he further urged that it is not* at all symbolic of the
unity of the Federation and rather demonstrates President’s animosity and ill‑will
against the elected Prime Minister of the country. The portions of the speech
and of the two Presidential addresses are juxtaposition placed below:‑‑
re‑~ r r
JJ ‑gjL‑ o Zt’^,Jk
?
dol
JCL~A3
It is noteworthy that the time‑lag between the President’s speech
and his address dated 22nd December, 1993 is about four months only. In the
address it has been maintained that despite internal and external differences
with which the Federal Government was confronted, its performance in the economic
field was praiseworthy but conversely in the speech the President depricated
the economic and financial policies of the Government. It is difficult to
reconcile the views expressed in the speech with those embodied in the address
dated 22nd December, 1993.
A 4 4 re‑~ r r
urd.qv
Seemingly, there is a lack of harmony in the appreciation of the
foreign policy made under the address dated 22nd December, 1992 and its
assessment demonstrated by the speech of 18th April, 1993.
r r
L/i ~jo (Privatisation) JDC, .110 e‑:‑~
Lf I (r)
LP;J.Jj1,? (7.,%W ji ~_6 di jk5 J.0 JV K,:4
The privatization policy was discussed on both the occasions; on 22nd
December, 1992 its operation was considered as encouraging but after four
months it has been subjected to criticism.
0 VJ 1; A >1 6 X I
LuAx~J~+’wL j_fLeir_. Lo’r
U‑1f)VL M.A.
‘Jljr;jj
6Z~ ~~’ JAt V4 jv~;6.4
‑i‑! ~JL
Previously the dearness was found to be a worldwide phenomena with
which not only Pakistan but various other countries of the world were faced. it
was observed that solid steps would be required, to resolve the problem. in
this respect introduction of the Food Stamp Scheme was regarded as laudable and
the need for making the monetary policy more effective, for achieving long time
results, was emphasised. However, in the subsequent speech the dearness is
considered as an outcome of unwise policy of the Government.
We feel, that there is a marked difference in the previous and present
appraisal of the approach of the Government towards Council of Common Interests
and National Economic Commission. In defending the fiscal, foreign and other
policies of the outgoing Government, Mr. Khalid Anwar categorically asserted
that the Care-taker Government made a clear cut public announcement that the policies
of Mian Muhammad Nawaz Sharif’s Government would continue to be followed. We
may observe, that this contention has remained unrefuted by the learned
Attorney-General and Mr. S.M. Zafar. It being so, according to Mr. Khalid
Anwar, the hollowness of the criticism launched against the policies of the
former Government was fully exposed. It is clear ground to us, that the 3rd is
also not established.
24. In the course of hearing of this petition, the nature of the
Constitution and the provisions relating to the powers and duties of the
President and Prime Minister were extensively debated before us. Mr. S.M. Zafar
argued that before the Constitution (Eighth Amendment) Act, 1985, the
Constitution presented a Parliamentary form of Government but after the
amendment, the balance of power is heavily shifted in favour of the President
and referred to Articles 48(5), 48(6), 58(2), 213(l), 242(1‑A), 243(2‑C)
empowering the President to act in his discretion. When the National Assembly
is dissolved by the President, under Article 48(5) he is vested with the
discretionary power to fix a date for the holding of general election to the
Assembly, not later than 90 days from the date of the dissolution and also
appoint a Care‑taker Cabinet. Under Sub‑Article (6) of Article 48
he can on his discretion or on the advice of the Prime Minister, cause any
matter of national importance, referred to a referendum. Article 58(2)
contemplates two situations for dissolution of’ National Assembly at the
discretion of the President; firstly when a vote of noconfidence has been
passed against the Prime Minister and no other member of the National Assembly
is likely to command majority of its members and secondly when the Government
of the Federation cannot be carried on in accordance with provisions of the
Constitution and an appeal to the electorate is necessary. Under Article 213(l)
the appointment of the Chief Election Commissioner is within his discretionary
powers. Similarly, Chairman of the Public Service Commission is appointed by
the President in his discretion. It is so stated in Article 242(1‑A). We
may observe that Article 243(2‑C) deals with the appointments of the
Chairman, Joint Chiefs of Staff Committee, the Chief of the Army Staff, the
Chief of the Naval Staff and the Chief of the Air Staff. In the President’s
speech of 19th April, 1993, the appointment of the Chief of Army Staff is
mentioned as one of the controversial issues between him and the Prime
Minister. The expression “in his discretion the Chairman, Joint Chiefs of Staff
Committee” appearing in this clause was inserted by Presidential Order No.14 of
1985. According to Mr. Yahya Bakhtiar, under this amendment only the
appointment of Chairman, Joint Chiefs of Staff Committee was brought under the
discretion of the. President and the appointments of other Chiefs i.e. the
Chief of Army Staff, the Chief of the Naval Staff, the Chief of the Air Staff
did were not rendered within his discretion. He referred to Articles 213 and
218 to urge that though under P.O. 14 the appointment of the Chief Election
Commissioner was made to fall within the discretion of the President, yet such
discretion was not extended to the appointment of the members of the Election
Commission. In this behalf, I am inclined to agree with the conclusion reached
by my brother Shaflur Rahman, J. in his proposed judgment.
25. With reference to other category of powers of the President, Mr.
S.M Zafar dilated upon provisions under which the President acts in
consultation with other Constitutional functionaries. Such provisions listed by
him are Articles 72(l), 101, 177,.181, 193(l) and 218(l)(b). Article 72(l)
relates to the making of the rules by the President in consultation with the
Speaker of the National Assembly, concerning the joint sitting, and
communication between two Houses of the Parliament. The other Articles relate
to appointments Of Judges of the Superior Court except Article 218(l)(b) which
covers the appointment of the members of the Election Commission. In the
submission of Mr. Yahya Bakhtiar ‘consultation’ does not exclude applicability
of Article 48(l) under which the President has to act on the advice of the
Cabinet or the Prime Minister, as the case may be. While in the High Court in
M.D. Tahir v. Federal Government 1988 CLC 1369 in hearing a writ petition
dismissed in limine, I had the occasion to construe Article. 193(l) and did not
consider the Prime Minister’s advice as sine qua non for the validity Of
appointment of Judges of the High Court. After hearing Mr. Yahya Bakhtiar, I feel
that what he asserts can be another way of looking at Article 193(1) andl this
matter requires serious research.
26. On the rectitude of these Articles, particularly those conferring
discretionary powers on the President to dissolve the National Assembly and
make appointments of dignatories holding high Constitutional offices, Mr. S.M.
Zafar strenuously argued that the amended provisions of the Constitution are an
exhibition of a departure from the parliamentary system of Government, as the
President is obliged to keep an eye on the working of Federal Government, to
ascertain as to whether or not it is
being carried on in accordance with the provisions of the Constitution. The
learned counsel went on to contend that the power to make the’ appointments in
question, made a tremendous difference and lended an upper hand to the
President, he is not merely a figure head but rested with sufficient authority.
It is discernible from the record before us, that from time to time directives
have been issued by the President’s House to the Prime Minister’s Secretariat,
which fully march with the idea of Presidential supremacy. ‑In his speech
dated 8‑4‑1993 as well the President has claimed:‑‑‑
27. After carefully examining the relevant provisions of the Constitution,
we do not feel persuaded to denude it of its basic character of presenting a
parliamentary form of Government, which originated in the United Kingdom and
developed through an evolutionary process, extending over centuries, based on
conventions and precedents, and is the outcome of political struggle as a
result whereof the absolute powers of the King were substituted by the
supremacy of the Parliament. The salient features of the Parliamentary form Of
Government are that real executive power is exercised by the Cabinet of the p
Ministers, with the Prime Minister at its head. The Crown acts on the advice of
the Cabinet, which is collectively responsible to the elected popular House‑
In the words of Dr. Herman Finer:‑‑‑
“Ministers are Ministers of ‘the Crown, that is they are formally
appointed and dismissable by the Crown. But this action is hardly more than formal and symbolic The Crown
appoints, but it does not choose; it dismisses, but it does not control; nor
does it determine the occasion for dismissal.
....... It is the authority of
the people to which Government has been made responsible. The people exhaust
their authority in the choice of Parliament, and this body to which a large
sphere of sovereignty is still ascribed by Constitutional lawyers, appries the
test of responsibility to Ministers”. (Theory and Practice of Modern
Government, pp.953‑954).
28. Our Constitution ordains a Parliamentary system of Government with
collective ministerial responsibility to the Parliament. Article 91(1) provides:‑‑‑
1191. The Cabinet.‑‑‑‑(1) There shall be
a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise
the President in the exercise of his functions.”
Under Article 91(4) the Cabinet ‘ together with the Ministers Of State
is collectively responsible to the National Assembly. On behalf of the
petitioner R reference has been made to.Article 91(2) which apparently confers
discretion on the President to appoint from amongst the Members of the National
Assembly, a Prime Minister, who in his opinion is most likely to command the
confidence of the majority of the Members of the National Assembly. It is
submitted, that the President has no substantial say in the matter of
appointment of the Prime Minister; whosoever amongst the members commands the
confidence of the majority, has got to be invited by him to form the
Government. Under Article 91(5) the Prime Minister holds office during the
pleasure of the President, but it is submitted that his pleasure is not
unqualified. The Constitution directs that such discretion shall not be
exercised as long as the Prime Minister commands the confidence of the majority
of the members of the National Assembly. If the Prime Minister ceases to enjoy
the confidence of the majority, the President has to summon the National
Assembly and require him to obtain vote of confidence from the Assembly. These
submissions of the learned counsel for the petitioner are not without merit. In
the context of the controversy before us Article 48(l) occupies the pivotal
position. It provides‑‑
“48. President to act on advice, etc.‑‑‑(I) In
the exercise of his functions, tlw President shall act in accordance with the
advice of the Cabinet, or the Prime Minister:
Provided that the President may require the Cabinet or as the case may
be, the Prime Minister to reconsider, such advice, either generally or
otherwise, and the President shall act in accordance with the advice tendered
after such reconsideration.”
The compulsory nature of the principle of advice is quite obviously.
The President is bound to act on the advice of Prime Minister/Cabinet,
commanding majority in the House, except where he has discretion or exercises
prerogative such as under Article 94 and his satisfaction is secured (Articles
232, 234, 235); if such satisfaction is borne out from the advice tendered to
him by the Prime Minister or. the Cabinet. Compliance with Article 48(l) by the
President is ensured by Articles 42 and 47. Under Article 42 he takes the oath
to perform his functions faithfully in accordance with the Constitution and
further to preserve, protect and defend the same. If he misconducts or refuses
to accept the advice, he can be impeached under Article 47 for violation of the
Constitution.
29. The concept of responsible Government visualises that the Head of
State himself can do no wrong; he acts on the advice of his Ministers on whom
the resporisibility for such act lies; they arc answerable to the House. Under
our Constitution the executive authority of the Federation, like other democratic
Constitutions vests in the Head of the State. This principle has
received recognition in Article 90, ‑which requires that the executive
authority vesting in the President “shall be exercised by him either directly
or through officers subordinate to him, in accordance with the Constitution”.
Since constitutionally the President is bound to follow* die advice of the
Prime Minister and Cabinet, the result is that practically the executive
authority is placed in the hands of the Cabinet headed by the Prime Minister.
The President is thus not responsible to any one for the acts done in his name.
The responsibility lies on the Cabinet alone. In this respect we may usefully
quote here a passage from page 308 of the “Constitution and Administrative Law”
by 0. Hood Phillips (4th Edn.):‑‑‑
“Since the Sovereign acts on the advice of the Cabinet, tendered through the Prime Minister, and the
Government is carried on in the name of the Sovereign, the Cabinet is expected
to keep the Sovereign informed of any departures in policy, of the general
march of political events, and in particular of the deliberations of the
Cabinet.”
This principle is embodied in Article 46, which casts an obligation on
the Prime Minister to communicate to the President all decisions of the Cabinet
relating to the affairs of the State, including proposals of legislation. The
President is also empowered to call for such information. Since the Cabinet is
collectively responsible to the National Assembly, where a decision is taken by
the Prime Minister or a Minister, but which has not been considered by the
Cabinet, under Article 46(c) if the President so requires, it is the duty of
the Prime Minister to submit such matter to the Cabinet for its consideration.
In England there is unitary form of Government. Our Constitution is federal in
structure but the aforesaid provisions fairly indicate that it is fundamentally
modelled on the pattern of British Parliamentary system.
30. In order to signify the effectiveness of the role of the President
under our Constitution, the learned Attorney‑General. has placed before
us the Constitution of India (Vol. 1) by Kagzi, at its page 182, the President of India is described as
a popular uniting symbol; has the privilege to be consulted and the right to encourage
and warn the Prime Minister and Members of the Council of Ministers. It may be
pointed out that Article 74 of the
Indian Constitution originally did not provide that the advice of the
Council of Ministers was binding on the President. This Article was amended by
the Constitution (FortySecond) Amendment Act, 1976 to ensure that the advice
was accepted by the President without question. Thus, on what the learned
Attorney‑General relied upon, related to the position obtaining prior to
the amendment of Article 74.
31. In earlier part of this note we have referred to the observation
made by the President in his speech dated 18‑4‑1993 that tendering
of advice to the Government was his Constitutional obligation. Such a claim is
not countenanced by the Constitution or the law‑, rather the dictates of
the Constitution or otherwise. As already noticed the Constitution confcri such
a right on the Prime Minister and the Cabinet; the advice tendered by them is
imperativc and binding on the President. In view of the over‑reaching
claim of the President, the learned Attorney General helplessly endeavoured to
whittle down the asperity.of the expression and urged that by the word ‘advice’
the President intended to convey .counseling” and not as the term “advice” with
its compulsive feature, is understood in the Constitutional parlance. But, the
President has quite unambiguously founded his claim on the Constitution and not
on anything else. We may cite here the remarks of Sri K. Santhanam, who was an
eminent member of the Constituent Assembly of India:‑‑‑
“I have often wondered what would have happened if Jawahar Lal Nehru
had become President and Dr. Rajcndra Prasad the Prime Minister., I have no
doubt that the words ‘aid and advice’ would have .been interpreted, at least to
mean that ‘the Council of Ministers’ would have to accommodate themselves to
the views of the President in matters in which he felt strongly.”
(K. Santhanam, the President of India, 1969, JCP (July), p‑1).
To be fair to the Dissolution Order, it may be stated that it has been
issued by the President under Article 58(2)(b) and all other enabling powers.
But our Constitution is a written one. The powers and duties of the President
are to be gathered from the Constitution itself. There is no question of
enjoyment of any enabling or implied power. It may be pointed out that Article
58(2)(b) was X introduced in the Constitution in preventing a wrong rather than
securing a right for the President. This provision exists for wise and careful
employment in grave situation within the
parameter specified by this Court in Federation of
Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166, but thely
impugned order does not withstand the test laid down therein.
32. In the context of the powers and Constitutional position of the
President, Article 41 also came under discussion, which represents the
President as a symbol of unity of Pakistan. He is elected by the Provincial
Assemblies as well as the National Assembly and is a binding force between’ the
Federation and the federating units. In a plurist society rent with political
polarization, ethnic, racial, provincialism and other diversities, for
strengthening the process of social harmony, democracy and creative national
enthusiasm, the role of the President becomes all the more important. These
objects can meaningfully be achieved if the President shuns politics and
remains a non‑controversial figure. Deplorably, the record before us
creates a I different impression. Article 33 included in Chapter 2 of the
Constitution’
‘
under the “Principles of Policy” casts an obligation on the State to
discourage parochial, racial, tribal, sectarian and provincial prejudices among
the citizens. Under Article 29 it is the responsibility of each organ and
authority of the State to act in accordance with these principles. Regulation
of relations between the President and the Prime Minister is a paramount
national requirement. Both’ are expected to exercise tolerance, exhibit
endurance and act within the limits;, of Constitutional propriety. The
President is Constitutionally required to act on the advice of the Prime
Minister/Cabinet, but such advice ought’not to be loadcd with a perception of
dominance and veto power. If the President counsels the Prime Minister or the
Cabinet, his counseling is entitled to weight. These are some of the norms of
Constitutional jurisprudence for successful operation of the Constitutional
prescription.
33. Having availed of the privilege of going !through the proposed
judgment of the learned Chief Justice and those bf my other learned brother
Judges, including the one proposed to be handed down by my brother Shaflur
Rahman, J. comprising the majority view, with which respectfully I do not
differ. I feet that the expressions employed, the views expressed and
inferences’ drawn therein, sufficiently indicate that the President not only
acted against the spirit of the Constitution but also violated it and there
were no reasonable basis either in law or on facts to act in the manner as the
President chose to proceed. Further, technical expressions well known to the.
judicial parlance have been avoided and rightly so, because of the high esteem,
that the office of the President demands. If it had been the case of the holder
of lesser office, may be the caution in not using the words like “mala ride”
would not have been taken. In the light of the aforesaid analysis, the
dissolution order being unconstitutional and otherwise than bona fide is
unsustainable. Only some of the reasons given in the dissolution order have
been dealt with in detail in this note; for these as well as the other grounds
of the impugned order, I have relied upon the supporting findings recorded by
my brother Shaflur Rahman, J. and other
brother Judges. The question arising would be, that if such finding has
annulled one or more reasons specified in the dissolution order, can the rest
of the reasons mentioned therein, stand independently, despite the fact that
the person giving the reasons remains the same. Our answer is in the negative.
Such finding goes much deeper than it looks at the surface, as the taint thus
found attached to the person and his acts would continue.
The aforesaid are the reasons for the short order passed by the Court
SAJJAD ALI SHAH, J.‑‑‑I have gone through very
carefully, elaborate leading judgment proposed to be delivered by my learned
brother Shafiur Rahman, J. for whom I have great regard and whose’ profound
learning I always keenly admire but with optimum respect I say that I rind
myself unable to agree with his views and resultantly I venture to write
dissenting judgment. Facts in great detail arc described in the main judgment
but for the purpose of brief recapitulation it is necessary and proper to state
that on account of differences, which arose between petitioner as Prime
Minister and respondent No.1 as President of Pakistan, erosion crept in the
working relationship of the two and in that context and on that subject, in
order to avert complete breakdown, meeting took place between the two at
Presidency on 14‑4‑1993, which later turned out to be the last
meeting. For the sake of brevity petitioner and respondent No.1 would be
referred hereafter as the Prime Minister and the President respectively.
2. It is stated in paragraph 8 of the petition that the Prime Minister
met the President to once again clear the atmosphere of distrust and allay the
hostilities which could jeopardize the democratic process in the country. There
is some controversy on the point as to what transpired in the abovementioned
meeting and what was agreed upon between the President and the Prime Minister.
According to,the press release from the Presidency, copy of which is on the
record at page 124 of Volume 11 of Annexurcs in which it is stated that meeting
lasted for about two hours in which grave and pressing national and
international problems facing country were reviewed. The President urged the
Prime Minister to undertake positive steps as early as possible to address
effectively the problems to the satisfaction of the public representatives and
the people. The Prime Minister undertook to do so on an urgent basis and to
revert to the President with precise measures in that behalf. This press
release is challenged on behalf the Prime Minister to the extent that it does not
depict correct factual position. On the other hand it is stated on behalf of
the Prime Minister that in the said meeting causes of prevalent political
situation in the country were considered, and it was agreed that necessary
measures would be taken to diffuse it. The Prime Minister assured the President
that issue of 8th Amendment was well behind them. The Prime Minister
acknowledged that he valued the President’s guidance and counsel and looked
forward to his continued advice at various stages of formulation and
implementation of policies. Both agreed that efforts should be made to win back
friends and colleagues, who have left the Cabinet as a result of
misunderstandings and differences. According to this version at a later stage,
two Federal Ministers Lt.‑General (Rtd.) Abdul Majeed Malik and Mr.
Ellahi Bakhsh Soomro joined the President and the Prime Minister in the
meeting. Copy of the minutes of the meeting prepared by the Prime Minister’s
Secretariat is produced and is on the record at page 125 of Volume II
containing annexures. Questions as to which version is correct and who is right
are questions of facts which cannot be answered in Constitutional petition
without recording of evidence. In any case it can be deduced from the
abovcmentioned documents and the pleadings of the parties that effort was made
in the meeting to reduce the tension and remove irritants in the way of working
relationship between two pillars of the Government of Federation.
3. Two days later i.e. 17‑4‑i‑993, the Prime Minister
addressed the nation on television and the need for doing so is described in
the memorandum of petition in paragraph 9 which is reproduced as under:‑‑‑
“In the circumstances it became necessary for the petitioner to take
the nation into confidence about the factors which had led to the tense
political atmosphere which had brought the national activities to a standstill.”
4. The Prime Minister addressed the nation on television in Urdu and
copy of the speech in Urdu is available in Part 11 of rejoinder to the written
statement. At this stage it is not necessary to reproduce the whole speech but
tenor and purport of the speech depicts criticism of person and office of the
President, alleging that he allowed the Presidency to be used for conspiracies
to destabilise the Government. It was asserted in the speech that Presidency
was being frequented by persons who talked of entering Pakistan on the tanks of
enemies and were determined to destabilise the Government and in that
connection steps were taken for blackmailing the Assembly, horse‑trading
and doing dirty politics and with the intention of dislodging the Prime
Minister. After enumerating the reforms introduced for the good of the people
speech ended with declaration by the Prime Minister as under:‑‑‑
“I shall not resign, shall not dismiss Assembly and I shall not take
the dictation.”
5. On the following day of the speech of the Prime Minister, Speaker o
the National Assembly summoned the session for the next day as requisitioned by
the required number of members of the National Assembly. On the same day i.e.
18‑4‑1993 leader of the Opposition in the National Assembly Ms
Benazir Bhutto met the President in the Presidency and handed over to him
resignations of the members of the Opposition in the National Assembly..On that
day in the late evening the President addressed the nation on television and
dissolved the National Assembly and in consequence dismissed the Prime Miniser
and the Cabinet as contemplated under Article 58(2)(b) of the Constitution. In
the same speech the President announced that he had appointed Mr. Balkh Sher
Mazari as Caretaker Prime Minister and two other Federal Ministers as members
of the Caretaker Cabinet which was expanded later to give it shape of National
Government. The text of speech of President in Urdu is available at page 56 of
paper book Part 1.
6. Grounds mentioned in support of order of dissolution briefly stated
are; mass resignations of members of National Assembly, speech of the Prime
Minister on television making false and malicious allegations against the
President, failure of the Government to protect autonomy of Provinces by
bypassing Council of Common Interests and National Economic Council, maladministration,
corruption and nepotism in bodies, authorities and banks and lack of
transparency in the process of privatisation and disposal of properties,
unleashing reign of terror against opponents, violation of Constitution, not
responding to the complaint of Begum Nuzhat Asif Nawaz about death of her
husband and finally threat to the security and integrity of the country and
grave economic situation necessitating fresh mandate from the people.
7. During the hearing preliminary objection was raised on behalf: of
respondents that Constitution petition directly filed in the Supreme Court is
not maintainable and competent as contemplated under Article 184(3) of the
Constitution. Both Mr. Aziz A. Munshi, learned Attorney‑General of
Pakistan for the President as respondent No.1 and Mr. S.M. Zafar learned
counsel for Care‑taker Prime Minister as respondent No.3, stoutly
contended against the maintainability of the petition on the ground that order
of dissolution did not violate Fundamental Right contained in Article 17 of the
Constitution pertaining to the freedom of association. According to them
Article 17 gives right to form and to be a member of political party but does
not give Fundamental Right to continue the Government which is covered and
governed by other provisions of the Constitution. In this connection claim
raised on behalf of the petitioner is denied and seriously disputed. Article
199 of the Constitution confers upon High Court writ jurisdiction. Article
184(3) of the Constitution empowers the Supreme Court to exercise the same
jurisdiction as conferred upon High Court under Article 1W, when Supreme Court
considers that a question of public importance with reference to the
enforcement of any of the Fundamental Rights conferred by Chapter I of Part Il
is involved. It is submitted on behalf of the petitioner that his political
party has fundamental right to continue the Government till its tenure comes to
an end.
8. Perusal of the Constitution shows that there are several other
provisions which govern the continuation of the Government. Article 91(2A)
envisages that the President shall invite the member of the National Assembly
to be the Prime Minister who commands the confidence of the majority of the
members and such person is to be given oath as is provided in clause (3) of the
same Article. Clause (5) of Article 91 provides that the Prime Minister, who
does not command confidence of the majority shall be required to obtain, vote
of confidence from the Assembly. Article 58(l) of the Constitution provides
that the President shall dissolve the National Assembly if so advised
by the Prime Minister. Clause (2) of this Article empowers the President to
dissolve the National Assembly in his discretion. If provisions of the
Constitution mentioned above, are read conjointly, it would appear that Article
17 gives right to form or be a member of political party subject to any
reasonable restrictions imposed by law but does not give any further
Fundamental Right to that political party to continue the Government till its
tenure has come to an end. In the case of Ms. Benazir Bhutto v. Federation of
Pakistan and another PLD 1988 SC 416 amendments in the Political Parties Act,
1962 were challenged as inconsistent with Article 17(2) of the Constitution
providing automatic penalty of political extermination in case, of ‑non‑registration
of political party with Election Commission of Pakistan. With regard to concept
of political party it has been held at page 520 of the report as under:‑‑‑
“Thus while the right to form political party is guaranteed under subArticle
(2) of Article 17, the right of the members to meet is guaranteed by Article
16, the right to move from place to place is guaranteed by Article 15, the
right to freedom of speech and expression is guaranteed by Article 19 and so
on. This is so because the Fundamental Rights are guaranteed to the citizens as
such and the’ association can lay claim to the Fundamental Rights guaranteed by
the different Articles solely on the basis of their‑being an aggregate of
citizens composing the party. However, by forming a political party its members
do not acquire any higher footing as regards other Fundamental Rights which as
individuals they could not claim. Further the political party while exercising
its freedom under different Articles is subject to reasonable restrictions imposed
thereunder.”
9. It was further held in that case that provisions of sections 3(l), 3‑A,
3‑B, 3‑C and 6 of the Political Parties Act, 1962 on account of
being inconsistent with Fundamental Right were declared to be void to that
extent. ‑
10. In the case of Ms. Benazir Bhutto and another v. federation of
Pakistan and another PLD 1989 SC 66, after examination of section 21 of
Representation of the People Act, 1976 in the light of Article 17(2) of the
Constitution it was held that section 21 of the said Act was violative of the
fundamental right contained in Article 17(2) of the Constitution in so far as
it fails to recognize the existence and participation of political parties in
the process of elections particularly in the matter of allocation of symbols
and was for’ that reason void‑to that extent. Every political party is
eligible to participate in the Elections to every seat in th; National and the
Provincial Assemblies.. The political parties shall be entitled to avail of the
provisions of sub‑rule (2) of Rule 9 of the Rules to seek allotment of
any of the prescribed symbols.
11. During the hearing on the question of, maintainability I felt
greatly inclined in favour of maintainability of the petition for two seemingly
convincing reasons. Firstly, prompted by modern trend of judicial activism was inclined to give liberal interpretation
to Article 184(3) of the Constitution to carve out and assert jurisdiction in
respect of public interest litigation. After giving this case benefit of
analogy as stated above, I kept in view two precedent cases in which
Constitutional petitions were entertained directly by the Supreme Court. After
making deep and ver~ careful study of Article 184(3) and Article 17 alongwith
other provisions of the Constitution and’the two decided cases to be mentioned
later and a host of other authorities in aid of the subject I am now inclined
to the opinion that in the instant case a petition under Article 184(3) of the
Constitution directly filed in the Supreme Court is not maintainable and for
that purpose resort should have been made to the
High Court.
12. In the case of Begum Nusrat Bhutto v. Chief of Army Staff etc. PLD
1977 SC 657, Constitutional petition was filed directly in the Supreme Court
without going to the High Court. First objection taken was that petition was
directed against Chief of the Army Staff whereas the orders of detention had
been passed by the Chief Martial Law Administrator. This objection was disposed
of summarily on the ground that Chief of the Army Staff was also Chief Martial
Law Administrator and the objection was technical in nature and could be met by
adding words of Chief Martial Law Administrator to the description of the
respondent. Second objection taken was that petitioner Begum Nusrat Bhutto was
not an aggrieved person in terms of Article 184(3) read with Article 199 of the
Constitution as she did not allege any violation of her own Fundamental Right
but only those of the detenus. It was held that clause (3) of Article 184 gives
concurrent power to the Supreme Court to make order for the enforcement of
Fundamental Rights in the same terms as could be made by the High Court under
the provisions of Article 199. Clause (1) (c) of Article 199 contemplated that
an application for enforcement of fundamental rights should be made by an
aggrieved person but in that case petitioner had filed petition in two
capacities, namely; as wife of one of the detenus and secondly, as Acting
Chairperson of Pakistan People’s Party to which all the detenus belonged. For
such reasons objection that petitioner had no locus standi was rejected.
13. In the second case of Ms. Benazir Bhutto v. Federation of Pakistan
PLD 1988 SC 416, which is mentioned above, in slightly different context it is
held that exercise of power of Supreme Court under Article 184(3) is not
dependent ofily at the instance of the “aggrieved party’ in the context of
adversary proceedings and traditional rule of locus standi can be dispensed
with and procedure available in public interest litigation can be made use of,
if it is brought to the Court by the person acting bona ride. The provisions of
Article 184(3), therefore, have provided abundant scope for the enforcement of
the Fundamental Rights of an individual or a group or class of persons in the
event of their infraction and it would be for the Supreme Court to lay down the
contours generally in order to regulate the proceedings of group or class
actions from case to case. It is only when the element of “public importance”
is involved that the Supreme Court can exercise its power to issue the writ
while sub‑Article (1)(c) of Article 199 has a wider scope as there is no
such limitation therein.
14. In the instant case Article 184(3) cannot be invoked for the reason
that impugned action of dissolution of the Assembly is not in conflict with
Article 17(2) as there is no Fundamental Right available to the petitioner to
continue the Government till the tenure comes to an end because that subject is
covered by other provisions of the Constitution which are mentioned above.
Article 17(2) which guarantees Fundamental Right mentions such right to the
extent of being a member of political party subject to any reasonable
restrictions imposed by law and nothing more than that. To continue in power
for five years till the end of tenure is a political wish and to be able to
participate in political process, is governed by other Articles of the
Constitution and not by Article 17(2). Article 17(2) mentions political party,:
which has bundle of rights including political rights which are different from
Fundamental Rights which are enumerated in the Constitution.
15. Mr. Khalid Anwar learned counsel for the petitioner has pointed out
that in Article 2A of the Constitution in the Objectives Resolution “political
justice” is mentioned giving it same status as that of Fundamental Right which
is reproduced as under:‑‑‑
“2A. The principles and provisions set out in the Objectives Resolution
reproduced in the Annex are hereby made substantive part of the Constitution and
shall have effect accordingly.”
16. On this premise second argument is built that before entry in the
National Assembly, a political party has Fundamental Right and after entry to
continue Government for five years is a political right arising from “political
justice” as enshrined in Article 2A which is also as good as implied
fundamental right. Learned counsel further stated that in the case of Benazir
Bhutto v. Federation of Pakistan and another PLD 1988 SC 419 Zafar Hussain
Mirza, J. (as he then was) has touched upon this aspect of “political justice”
favourably at page 460 of the report. I am not inclined to accept the
contention of the learned counsel for the following reasons. Fundamental rights
are specifically mentioned in the Constitution and no such fundamental right
can be deemed to be there by implication if not mentioned specifically. If
legislature wants to add any fundamental right it can do so expressly. There is
E no dispute about the fact that Article 2A containing Objectives Resolution
now is substantial part of the Constitution and this Article is now as good as
any other Article of the Constitution and at par with it. In the case of
Benazir Bhutto, mentioned above, Article 17(2) of the Constitution was examined
in the light of right to form or be a member of political party subject to any
restrictions imposed by law and in that context several provisions which were
added in the Political Parties Act were considered and found to be inconsistent
with fundamental right to form or be a member of political party. Exactly in
that context of right to form or be ‑a member of political party and in
connection with fair i elections and existence of political parties, Zafar
Hussain Mirza, J. observed at page 460 of the report as under:‑‑‑
“The expression ‘political justice’ is very significant and it has been
placed in the category of Fundamental Rights. Political parties have become a
subject‑matter of a Fundamental Right in consonance with the said
provisions in the Objectives Resolution. Even otherwise, speaking broadly, our
Constitution is a Federal Constitution based on the model of Parliamentary form
of representative Government prevalent in United Kingdom. It is also clear from
the Objectives Resolution that principles of democracy as enunciated by Islam
are to be fully observed. True and fair elections and the existence of
political parties, is an essential adjunct of a functional democratic system of
Government.”
17. It is quite obvious from the above quote that reference to “political
justice” is academic in nature because Fundamental Right is already mentioned G
in Article 17(2) which is right to form or be a member of political party.
Since some provisions of Political Parties Act offended against the fundamental
right mentioned above, they were struck down. In my opinion contention does not
advance the case of Mr. Khalid Anwar to the effect that after entry into
National Assembly continuation in the Government for rive years is based upon
political right which is akin to and related with Fundamental Right.
‑18. For the facts and reasons mentioned above, I am of the view,
that petition cannot be filed straightaway in the Supreme Court as Article
184(3) can be invoked only when question of public importance is involved with
reference to the enforcement of any of Fundamental Rights and in the instant
case petitioner cannot claim Fundamental Right under Article 17(2) to continue
Government till its tenure, comes to an end. Proper remedy for the petitioner
was to rile the petition before the High Court under Article 199 of the
Constitution and seek relief as contemplated therein challenging the validity
of order of dissolution passed by the President.
19. Coming back to the merits I would like to say that order impugned
in this petition is passed by the President under Article 58(2)(b) of the
Constitution. In order to appreciate the purpose and scope of this provision in
proper perspective it would be necessary to recall very briefly historical background.
We ‘got independence in 1947 and produced Constitution for the first time in
1956, which contemplated Parliamentary form of Government. In 1958 Martial Law
was imposed in the country and the Constitution was abrogated. Chief Martial
Law Administrator, who became the President, gave to the country Constitution
in 1962 which contemplated Presidential form of Government. Towards the end, of
the role of President Ayub Khan people became disenchanted and as protest came
out in the streets. There was no other alternative for President Ayub Khan but
to resign and while doing so instead of handing over the powers to the Speaker
of the National Assembly, he invited Commander‑in‑Chief of Army to
take over the country and perform his Constitutional role. Commander‑in‑Chief
of Army proclaimed Martial Law and held General Elections. There were some
other political developments as well in the wake of which there was war between
India and Pakistan and in consequence East Pakistan proclaimed independence and
became Bangladesh.
20. In West Pakistan result of elections was accepted and in
consequence Government was formed and a new Constitution was produced which is
called Constitution of 1973. This Constitution also contemplates Parliamentary
form of Government with concentration of powers in favour of the Prime
Minister. In 1977 again Martial Law Was proclaimed and Constitution was held in
abeyance. This country has seen several Martial Laws and whenever there is
Martial Law, Military rulers for that Parliamentary form of Government does not
suit the people of the country and they feel inclined in favour of Presidential
form of Government to ensure stability and long duration of the Government.
With same view in mind Gen. Ziaul Haq, who was C.M.LA. and President of
Pakistan endeavoured hard to evolve a system in which the President had more
powers than Prime Minister in the system of the Government. He did not mind
retaining Parliamentary form of Government because Presidential form of
Government introduced by late Ayub Khan was rejected by the people, who had
come out in the streets‑He wanted to retain Parliamentary form of
Government with more powers to the President who should be ‑able to have
a last say in the matter and dismiss the Government of the Prime Minister if
such situation arose. He also thought on the line of Turkish Constitution with
supervisory role to the army to be made in the Constitution.
1 21. It is noteworthy that C.M.LA. and President Gen. Ziaul Haq did,
not abrogate 1973 Constitution but held some of its provisions in abeyance.
When time came for removal of Martial Law and revival of Constitution of 1973,
Order, 1985 (President’s) 14 of 1985 was promulgated on 2nd March, 1985,
reviving the Constitution after making substantial amendments therein as wanted
by the President to suit his needs. In this context Article 58 of the
Constitution is worthmentioning for the reason that clause (2) was added in
Article 58 empowering the President to dissolve National Assembly in his
discretion where, in his opinion, an appeal to the electorate is necessary.
Before this amendment, Article 58 provided that President shall dissolve
National Assembly if so advised by the Prime Minister. It so appeared that
clause (2) gave President unbridled authority to dissolve the National Assembly
in his discretion whenever he thought that appeal to the electorate was
necessary. This opened controversy with regard to the unlimited powers of the
President and changing the shape of the Constitution from Parliamentary to
Presidential which ultimately resulted into Constitution (8th Amendment) Act,
1985 by which clause (2) of Article 58 was suitably amended and power of the
President to dissolve the National Assembly in his discretion was qualified.
22. The Constitution (8th Amendment) Act, 1985 was in fact compromise
for striking balance between the powers of the President and Prime Minister as
desired by the President and forces demanding lifting of Martial Law and
revival of the Constitution in the shape of Parliamentary form of Government.
The President agreed to lift the Martial Law and revive the Constitution on
condition that his points of view were accommodated including more powers to
the President so that situation did not arise necessitating imposition of
Martial Law. In such circumstances efforts were made to arrive at a compromise
in order to break the deadlock and give Constitution a chance to prove to be
workable. Interpretation and scope of authority and powers contemplated under
Article 58(2)(b) came up for detailed examination in the case of Federation of Pakistan
and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166. The
question presented two view points as to whether the said discretion is
uncontrolled and cannot be called in question on any ground whatsoever as
provided for in clause ~(2) of Article 48 or is it a discretionary power which
must be exercised reasonably and fairly and can be scrutinised through judicial
review. In that context this Court referred to the debates in the National
Assembly on Constitution (8th Amendment) Act, 1985 and came to the following
conclusion:‑‑‑
“Thus the intention of the law‑makers, as evidenced from their
speeches and the terms in which the law was enacted, shows that an order of
dissolution by the President can be passed and an appeal to the electorate made
only when the machinery of the Government has broken down completely, its
authority eroded and the Government, cannot be carried on in accordance with
the provisions of the Constitution.
It is within the discretion of the President to determine whether these
conditions are met or not but this discretion has to be exercised in terms of
the words and spirit of the Constitutional provision.
The discretion conferred by Article 58(2)(b) of the Constitution on the
President cannot, therefore, be regarded to be an absolute one, but is to be
deemed to be a qualified one, in the sense that it is circumscribed by the
object of the law that confers it.
Reading of the provisions of Article 48(2) shows that the President has
to first form his opinion, objectively and then, it is open to him to exercise
his discretion one way or the other, i.e. either to dissolve the Assembly or to
decline to dissolve it. Even if some immunity envisaged by Article 48(2) is
available to the action taken under Article 58(2) that can possibly be only in
relation to the exercise of his ‘discretion’ but not in relation to his ‘opinion’.
An obligation is cast on the President by the aforesaid Constitutional
provision that before exercising his discretion he has to form his ‘opinion’
that a situation of the kind envisaged in Article 58(2)(b) has arisen which
necessitates the grave step of dissolving the National Assembly.
Thus, though the President can make his own assessment of the situation
as to the course of action to be followed but his opinion must be founded on
some material.”
23. The salient feature of Saifullah’s case is that President Ziaul Haq
passed order of dissolution containing three grounds to the effect that firstly
law and order in the country had broken down resulting in tragic loss of
innumerable valuable lives and secondly that life, property, honour and
security of citizens of Pakistan had been rendered totally unsafe and thirdly,
that situation had arisen in which Government of Federation could not be carried
on in accordance with provisions of the Constitution. Judgment was announced by
the High Court after the death of President Ziaul Haq. This Court held that
order df dissolution was invalid on three grounds; firsty that there was no material in support of grounds,
secondly, Care‑taker Prime Minister was not appointed and thirdly, oath
of Ministers was altered. Relief claimed in the petition of restoration of
Assembly and Government was not granted for the following reasons. Firstly Mr.
Muhammad Khan Junejo (deposed Prime Minister hailing from Sindh) decided to
seek mandate of people. Secondly, Pakistan Muslim League (Ruling Party in the
Assembly) broke into two parts and the other
part was headed by Mr. Fida Muhammad Khan. Thirdly, whole administrative machinery
was geared up for election. Fourthly, after lifting of ban all political
parties could participate in the election. Fifthly, writ jurisdiction being
discretionary relief was rightly refused as greater harm could have been caused
if relief of restoration had been granted. In that context it was held that
concept of national interest had to take precedence over rights of individual. On the question of exercise
of discretion vis‑a‑vis right of appeal to political sovereign,
pertinent paragraph from the said judgment is reproduced as under:
“it should not be overlooked that dissolution does not in any way
adversely affect the rights of the members of the Assembly. If their claim that
they are in the Assembly by the consent of the people and as their representatives
and not merely because of a statutory provision, is good, they can seek re‑election
to the new Constituent Assembly, there being no disqualification attaching to
them from being chosen as members of that Assembly. If they receive a fresh
electoral mandate, they can return to the Assembly with greater popular
acclamation and thus disprove the allegation that they represent nobody except
themselves.”
24. For the second time order of dissolution of National Assembly under
Article 58(2)(b) of the Constitution was passed by the President and Federal
Government of Ms. Benazir Bhutto (hailing from Sindh) was dismissed and the
Constitution Petition was riled by a Federal Minister in that Government in
Lahore High Court which was dismissed. Scope and authority under Article
58(2)(b) was again re‑examined by this Court in the case of Khawaja Ahmad
Tariq Rahim. v. The Federation of Pakistan and another PLD 1992 SC 646. In
support of order of dissolution President had assigned five main grounds and
produced material in support of the grounds. Those five grounds were; firstly,
that there was scandalous ‘horse‑trading’ for political gain and thereby
mandate of National Assembly was defeated. Secondly, the Federal Government
undermined and impaired the working of the Constitutional arrangements and
bypassed Council of Common Interests and National Finance Commission. Thirdly,
there was corruption and nepotism in the Federal Government, its functionaries,
authorities and other corporations including banks. Fourthly, the Federal
Government failed to protect Province of Sindh from internal disturbances.
Fifthly, the Government of Federation violated provisions of the Constitution
by ridiculing superior judiciary, misusing resources and agencies of Government
like statutory corporations, authorities and banks for political ends and
personal gains and undermined Civil Service of Pakistan. Full Bench of 12
Judges of this Court heard this case and by majority opinion 10 to 2 upheld the
order of dissolution after consideration of material produced in support of the
order. In respect of Article 58(2)(b) it was held as under:‑‑‑
“President of Pakistan has the power to dissolve National Assembly at
his discretion and specific power and the judicial requirement have been provided
in the Constitution. Once the evil is identified, remedial and corrective
measures within the Constitutional framework must follow. Public functionaries,
holding public power in trust, under oath to discharge the’same impartially and
to the best of their ability must react as they cannot remain silent
spectators. Legal and moral basis for reserving or reposing such a power and
the occasional exercise of its illustratively described.”
25. On the question of defection of elected members, although the same
was not caught by the mischief of relevant law, it was held that defection
amounts to a clear breach of confidence reposed in such members in the
electorate and dissolution on this ground was justified on moral reasons. It
was also held that President was justified in dissolving the National Assembly
on the ground that Constitutional institutions like Council of Common Interests
and National Finance Commission were not allowed to function, hence
Constitutional obligations were not discharged. In short whatever material was
produced in support of the grounds of dissolution was accepted by this Court to
be adequate and order of dissolution passed by the President was upheld to be
valid and justified. I would like to make comparison between the case of Khawaja
Ahmed Tariq Rahim and the present case in order to show that material produced
in the present case is more quantity as well as qualitywise than material
produced in Khawaja Ahmad Tariq Rahim’s case and same yardstick for evaluation
of material and interpretation of Article 58(2)(b) should be followed and no
departure should ‑be made from following the guidelines laid down in the
cases of Haji Saifullah Khan and Tariq Rahim by this Court.
26. In the present case the order of dissolution is supported by eight
grounds, two I of which are further sub‑divide7d into other grounds as
well. In Tariq Rahim’s case there were rive grounds enumerated in support of
order of dissolution and from them two were further sub‑divided into
other grounds as well. In the present case first ground is mass resignations of
members of Opposition and some members of Treasury Bench including Ministers,
showing their desire to seek fresh mandate from the people on account of which
National Assembly had lost confidence of the people. During the hearing in this
Court much time was consumed on the question of competence and validity of
resignations which were handed over to the President instead of Speaker, who
was supposed to accept them or not. The question here is not of intrinsic value
of resignations in the hands of the President, which are in transit and have
not reached the Speaker, but these resignations are to be considered as
material in support of the ground that members of the National Assembly had
lost confidence in the Federal Government headed by the petitioner as Prime
Minister and in such circumstances need was felt with justification by the
President for exercise of his power and discretion under Article 58(2)(b) to
dissolve the Assembly after objective assessment of the situation.
27. In the written statement it is mentioned that the President had
received total of 88 resignations apart from which there were already 12
vacancies of previous resignations plus vacancy of one member who had died. in
such circumstances out of total membership of 217 there could be 101 vacancies.
Without going’ into the question as to when in point of time the
resignations would be deemed as valid causing vacancies stricto senso
it can be said that this material as such in the hands of the President could
be considered by him to form an opinion that 88 members who resigned could turn
the scales in conjunction with other concomitant circumstances stated above,
showing that Federal Government headed by the Prime Minister and National Assembly
had lost its mandate in the sense that its representative character was not
same as it was before when people voted for it. The fact cannot be lost sight
of that I.J.1. as amalgam of several parties jointly contested elections and
people voted for it. In the result 111. formed Government but afterwards
several other parties disassociated from LJX. Even Muslim League (Junejo Group)
was split into two parts, the second part is Nawaz Sharif group. Hence at the
time of dissolution Ul. was not same group of political parties which were
voted into power.
28. It is explained on behalf of respondents in the written statement
that the resignations were not sent to the Speaker for the reason that he was
partisan and had not acted in the past upon motions directed against the Prime
Minister and other Ministers of the Federal Government. Speaker was
getting preferential treatment in special allocation of funds for his
constituency. In such circumstances resignations were handed over to the
President as mark of protest. As said earlier I am of the view that
resignations with the President can be considered as material in support of the
ground of dissolution that K National Assembly has lost representative
character and mandate. In the majority judgment in this case view is taken that
President could not entertain the resignations, hence it was not a good ground
for dissolution. I beg to differ with the view of majority on this point for
the reasons firstly, that in Tariq Rahim’s case by analogy horse‑trading
was considered as ground for dissolution in spite of the fact that it was not
caught within the mischief of relevant law and secondly, horse‑trading
took place on both sides in the House but horse‑trading in favour of
Opposition was officially ignored. Thirdly, defection of elected members was
accepted on moral grounds. In this context I reproduce relevant paragraph from
the majority judgment of Tariq Rahim’s case:‑‑‑
0
“In the first place, if the member has’ been elected on the basis of a
manifesto, or on account of his affiliation with 4 political party, or on
account of his particular stand on a question of public importance, his
defection amounts to a clear breach of confidence reposed in him by the
electorate. If his conscience dictates to him so, or he considers it expedient,
the only course open to him is to resign to shed off his representative
character which he no longer represents and to fight a re‑election. This
will make him honourable, politics clean, and emergence of principled
leadership possible. The second and more important, the political. sovereign is
rendered helpless by such betrayal of its own representative. In the normal
course, the elector has to wait for years, till new elections take place, to
repudiate such a person. In the meantime, the defector flourishes and continues
to enjoy all the wordly gains. The third is that it destroys the normative
moorings of the Constitution of an Islamic State. The normative moorings of the
Constitution prescribe that “sovereignty over the entire Universe belongs to
Almighty Allah alone, and the authority to be exercised‑by the people of
Pakistan within the limits prescribed by Him is a sacred trust and the State is
enjoined to ‘exercise its powers and authority through the chosen
representatives of the people’. An elected representative‑who defects his
professed cause, his electorate, his party, his mandate, destroys his own
representative character. He cannot on the mandated Constitutional prescription
participate in the exercise of State power and authority. Even by purely
secular standards carrying on of the Government in the face. of such
defections, and on the. basis of such defections, is considered to be nothing
but ‘mockery of the democratic Constitutional process’.”
29. Why such incisive reasoning on moral grounds in respect of
defections’ as mentioned in the quote, is not being made applicable to mass
resignations in the, instant case without objection of validity.
30. The second ground marked in the order of dissolution as (b) is that
in the meetings between the President and the Prime Minister and particularly
in the last such meeting which took place on 14‑4‑1993, the
President urged upon Prime Minister to take positive steps to resolve grave
internal and international problems but instead of doing that on 17‑4‑1993
the Prime Minister made a speech on television and made false and malicious
allegations against the President of Pakistan who is Head of the State and
represents the unity of the Republic. The tenor of the speech was that the Government
could not be carried on in accordance with the provisions of the Constitution
and the Prime Minister advanced his own reasons and theory for the same, which
was done to cover up the failures qnd defaults of the Government and in such
circumstances speech of the Prime Minister was tantamount to a call for
agitation and in any case the speech and his conduct amounted to subversion of
the Constitution. The speech as such is neither denied nor disputed.
31. In the petition which is filed in this Court from paragraph 4
onwards achievements of the Federal Government are enumerated and the
background. is explained. According to the petitioner IJ.l. Government brought
about a negotiated scttlement/peace Agreement in Afghanistan. Massive progress
was made in the new Highway Project which widely increased the prospects for
new foreign and internal investment. The petitioner as Prime Minister visited
several foreign countries for investment. In Sindh Katcha lands were allotted
to landless Haris. According to the petitioner all such progress was made
without participation of the President in policy‑making and decision‑making,
which displeased him and he started interfering in ordinary. and routine
matters. This was calculated to undermine the authority and credibility of the
Federal Government And to give the impression that what actually matters in the
national affairs is the will of the President and not the people and their
elected Government. It is also stated in the petition that the ruling party
considered advisability of amending some Articles of 8th Amendment of the
Constitution and this further displeased the President.
32. It is also stated in the petition that the ruling party did not
want the President to be removed, hence declared openly to back him up for a
second term. In order to totally re‑assure him, the ruling party also
dropped the question of 8th Amendment. In spite of such steps having been taken
by the ruling party, the President misconstrued the attitude of the petitioner
as total surrender and he openly started entertaining and supporting persons
hostile to the Government, who were scheming and working to destablise the
elected Government. It is fruther stated in the petition that persons opposed
to the elected Government kept on meeting the President and making public
statements that the President would shortly announce the dismissal of the
Government and the President did not deny such statements. Ultimately on 14‑4‑1993
the Prime Minister met the President and after the meeting Presidency issued
Press Release which did not correctly depict minutes of the meeting and in such
Circumstances on 17‑4‑1993 the petitioner felt compe1led to take
the nation into confidence and made that speech. It is mentioned in the,
petition that on 18‑4‑1993 meeting was requisitioned by members of
the National Assembly to consider whether I.J.1. Government has lost its
mandate or not, the speech of the Prime Minister on 17‑4‑1993 and
the press statement issued by the Presidency on 14‑4‑1993. Both
President and the Prime Minister were planned to be invited. In a mala fide
manner the move was prevented by order of dissolution. How far this assertion
is believable remains to be seen.
33. In the written statement stand is taken by ,the President that the
Prime Minister was acting in important policy matters in total disregard of the
Constitutional provisions and had placed himself in the hands of few
individuals who did not guide him properly and this action was disapproved by
some important members of the Cabinet. Such lapses were pointed out to him in
the meetings between them in the months of March and April 1993 and the Prime
Minister considered the weaknesses and irregularities and agreed to take
remedial measures. The last such meeting took place on 14th April, 199.3, at
the end of which the Prime Minister recognized an urgent need for rectification
and promised to return to the President after initiating certain corrective
measures. Instead of doing that on 14‑4‑1993, the Prime Minister
made a speech on electronic media which was described as ‘unprecedented’ by
people of all walks of life. In that speech the Prime Minister chose the most
unusual course to demonstrate that the Government of Federation could not be
carried on in accordance with the Constitution. At the end of the speech the
Prime Minister defiantly declared that he would not resign, would not dismiss
the Assembly and would not take the dictation.
34. It is mentioned in the written statement that after the speech of
Prime Minister on electronic media on 17‑4‑1993, on the following
day session of National Assembly was summoned by the Speaker for 19‑4‑1993
on the requisition of members and for that purpose the Speaker of the National
Assembly hurried his return from New Delhi prematurely which demonstrated
collusion. During the hearing before us several arguments were put forward on
behalf of the Prime Minister in support of his speech and summoning of the
session of the National Assembly for 19‑4‑1993. It was submitted
that in our Constitution which contemplates Parliamentary form of Government
the Prime Minister is to advise the President and not vice versa. After the
last meeting on 14‑4‑1993, although the Prime Minister undertook to
take remedial measures but the time was too short and he felt constrained to
take public into confidence and for that reason he made speech on television on
17‑4‑1993. No material has been produced nor any assertion was made
to show that any request was made for extension of time which was refused by
the President.
35. Another argument is that if there was misunderstanding with regard
to the minutes of the meeting about which the Presidency issued Press Release
which was considered by the Prime Minister as not correctly depicting factual ~
position, then this was such a trivial matter that it could have been sorted
out between the President and the Prime Minister in another meeting. What
really appears from the annexures produced by both the parties in this case and
newspaper clippings which covered the events of that time that the President
suggested to the Prime Minister to get rid of some Ministers and some important
functionaries of the Government and the Prime Minister took time to do the
needful but then changed his mind and adopted tone and tenor of defiance. After
making the speech on T.V. on 17‑4‑1993 in which person and office
of the President was criticised with uncalled for imputations in a state of
frustration, steps were taken to summon the session of the National Assembly on
requisition of members for the following day, which did not appear to be a bona
fide move for obvious reason that there was already a request for summoning the
session of National Assembly and such summary was signed and approved by the
President, as the Court was informed by the learned Attorney‑General.
36. This move of suddenly summoning the session of the National
Assembly for the following day is open to many presumptions in the back‑ground
of strained relations between the President and the Prime Minister and the
speech of the Prime Minister on T.V.,in which he had addressed the nation. It
could be presumed that it was to take action of impeachment against the
President or to create a ground disabling the President from passing the order
of dissolution under Article 58(2)(b) on the assumption that session summoned
under the provision of the Constitution could be terminated only when prorogued
by the Speaker. On the other hand it was argued on behalf of the respondents
that power under Article 58(2)(b) is independent and under it order of
dissolution can be made by the President even if the Assembly was in session.
It was contended very forcefully by Mr. Khalid Anwar that the speech of the
Prime Minister, in any case did not amount to subversion of the Constitution
because as Prime Minister he could always address the nation and take people
into confidence on very important matters. Another argument was raised on
behalf of the Prime Minister that in the order of dissolution in the last
paragraph it is mentioned that the Prime Minister is dismissed and the word ‘dismissal’
should not have been used and by doing so Article 14 of the Constitution is
contravened which provides that dignity of man and subject to law the privacy
of home shall be inviolable.
37. In my humble opinion in this regard the most important and pivotal
point is the making of speech by the Prime Minister and its tenor and purport
which is not disputed but on the contrary is being defended vociferously on the
ground that the Prime Minister acted within his powers in the Constitution and
the President had no business to advise the Prime Minister in the Parliamentary
form of Government. The tenor of the speech of the Prime Minister shows clearly
that he endeavoured to take into confidence the nation on the point that the situation
had arisen in which the Government of Federation could not be carried on in
accordance with the provisions of the Constitution and for such situation he
was not to be blamed and the blame in its entirety lay on the door of the
Presidency and the person of the President who colluded with elements inside
the ruling party and outside, who were hellbent to destabilise the Government.
38. In my opinion the question of apportionment of blame for creating!
such a situation is relegated in the background and the fact that such a
situation is created bringing about deadlock and stalemate in the working
relationship of two pillars of the Government of Federation has become a fait!
accompli which enables the President
to exercise his discretionary power under Article 58(2)(b). There is no dispute
about the fact that after the speech of the Prime Minister to the nation on
T.V. on 17‑4‑1993 tone of
defiance and confrontation was set by the Prime Minister and not reconciliation
and this in fact is more than sufficient to say that situation is created
spelling out in clear and unambiguous terms breakdown of working relationship
between the President and the Prime Minister, hence Government of Federation
could not be carried on in accordance with the provisions of the Constitution
and appeal to the electorate was necessary. There is no gainsaying that problem
would be solved by the unilateral offer made by the Court to the Prime Minister
for assurance that if the Government was restored he would work hand in hand with
‘the President. Such offer was not made to the President. Action and reaction
are equal and opposite. By the tenor of the speech the President could feel
hurt and humiliated. No such compromise took place between the two to say that
they had patched up the differences and were reconciled with all sincerity
considering bygones as bygones.
39. Scheme of the Constitution is such that both Prime Minister and the
President are King‑pins in the machinery of Government of Federation and
have to work hand in hand in atmosphere of congeniality to carry out day to day
government and executive acts which are to be taken in the name of the
President on the advice of the Prime’ Minister and in that connection the
summaries have to go for approval of the President. What would happen if the
President does not cooperate.
40. 1 would like to
point out here that in the case of Tariq Rahim the situation was not so bad and
Prime Minister Ms. Benazir Bhutto had not made any speech to the nation
criticising openly and in public the person and office of the President. In the
absence of such speech apparently situation of open confrontation had not
arisen as in the present case, which means that grounds for dissolution in that
case were to be considered on their merits. Although the grounds were fewer in
number than grounds in the present case and material in support of grounds
quantity and qualitywise was far inferior but even then order of dissolution
passed in that case was upheld and not in the present case.
41. In this case
ground (3) in the order of
dissolution marked as (c) is that institutions set up under the Constitution
have been bypassed and in that context Government of Federation failed to
protect autonomy granted to the Provinces. In that connection examples quoted
are Council of Common Interests and National Economic Council and its Executive
Committee having been bypassed in the formulation of plans in respect of
financial, commercial and economic policies. It is stated that In the context
of privatisation of industries in relation to Item No.3 of Part 11 of the
Federal Legislative List and Item No.34 of Concurrent Legislative List, session
of Council of Common Interests was not called to discharge its Constitutional
functions as required by Articles 153 and 154 of the Constitution. Article 153
describes composition of Council of Common Interests which includes Chief
Ministers of the Provinces and equal number of members from the Federal
Government to be nominated by the Prime Minister. It is provided in clause (3)
of this Article that if Prime Minister is a member of the Council, he shall be
the Chairman of the Council but if at any time he is not a member, the
President may nominate a Federal Minister, who is a member of the Council to be
its Chairman. It is stated that in the instant case the Prime Minister is the
Chairman of the Council and failed to summon the session of the.Council to
formulate and regulate policies in respect of priviitisation of industries‑which
is a matter of great importance to the Provinces.
42. It was stated by the learned Attorney‑General that according
to Article 154, it is mandatory that Council shall formulate and regulate
policies but this was not done and therefore the Provinces felt aggrieved
because they were not taken into confidence. Had such meeting been called, the
Provinces would have voiced their grievances. In the petition there is a general denial of this allegation and assertion is made that Rs. 6,000 million
were paid to N.‑W.F.P. Government in 1991‑92 from net profit earned
by the Federal Government from a hydro‑electric station located in that
Province. This assertion is disputed by the Federal Government in the
written.statement and claim was made that full share of Government of
Balochistan for 1991‑92 and 1992‑93 was not paid about which the
5aid Provincial Government had also complained. Respondents have filed
Annexures in support of the claim. In the petition stand is taken that only two
specific examples of lack of consultation with Constitutional bodies like C.C.I.
and N.E.C. and its Executive Committee have been given. This issue was examined
in depth by the Minister concerned in response to comments received from the
President. A comprehensive report was sent to the President by the Cabinet
Secretary on 15‑4‑1993.
43. About’. privatisation policy it is stated in the petition that it ‑was
effectively implemented for the first time. Some units were privatised between
1977 and 1985 and a disinvestment committee was set up. In 1989 the then
Government had identified 14 specific units for privatisation. Many new laws
were enacted to implement the disinvestment policy since 1978 and none of the
successive Governments had consulted the C.C.I. Claim is made on behalf of the
petitioner that under Article 70 legislative procedure is given for
introduction and passing of Bills and in that connection relevant laws were
passed by the Parliament which were assented by the President without any
objection. Our attention is also drawn to Article 97 which relates to the
extent of executive authority of Federation in respect of making laws to be
made applicable in the Provinces. In this context it is submitted by the
learned Attorney‑General that Articles 70 and 97 as well as 154 and 173
have been misconstrued on behalf of the petitioner. The question of executive
authority of Federation could be invoked only after preconditions of Articles
160 and 161 were satisfied. From all what is stated above, it is clear that
mandatory requirement of Article 154 was not followed and C.C.I. was not called
for to formulate and regulate policy giving opportunity to the Provinces to
participate in the proceedings at such important stage.
44. Next ground in the
order of dissolution is (d) which relates to mal administration, corruption
and nepotism by the Federal Government showing lack of transparency in the
process of privatisation. It is asserted by the . respondents that process of
privatisation lacked transparency and was vitiated by various illegalities and
irregularities. Units were transferred to favourites without following proper
procedure and methodology for fixation of net worth of units were not
consistent. Recovery of sale price was not made in specified time‑frame
and manner which resulted in wastage of public assets at the cost of national
exchequer. The mode of sale/transfer enabled the transferees to manipulate
prices of products of sold units and made fortunes overnight to the detriment
of the consumer. Eight Cement factories were sold to one group of
Industrialists and the manner in which the Muslim Commercial Bank was sold to
the favourites of the petitioner namely Mansha Group is well‑known. Sale
of properties owned by the Federal Government including Corporations was unconstitutional and in doing so Articles
153, 154 and 156 read with Article 161 were violated by the petitioner and his
Government.
45. In relation to Pakistan Telecommunication Corporation, the
petitioner and his Government went to the extent of hiring services of foreign
consultants and got legislation prepared abroad in advance for privatisation in
such a manner that only foreign investors could buy it. In this connection.
Ministry of Law and Justice. was not consulted. The foreign investor was to
purchase only 26% of the share holding in the proposed Corporation while
Government of Pakistan though holding 74% were not given any right of vote. Tax‑Holiday
was proposed to be given to foreign purchaser. Buyer was to be a Government
within a Government. There was reason to believe that. petitioner and his
Government had similarly decided to sell WAPDA, the Railways, PNSC, the Ports
to foreign investors thus allowing foreign intervention in vital sectors of
Pakistan and endangering and exposing the Federating Units and the people of
Pakistan to the control of foreign companies. The Government of Federation was
not authorised under the Constitution or law to sell in the aforesaid manner.
46. It is claimed by the
respondents that important decisions were taken by the petitioner and his
nominees bypassing and in total disregard of Constitutuional requirements and
rules of business. Proposed privatisation of WAPDA, PTC, portion of Pakistan Railways or other Corporations
owned by the Federal Government, PIA and nationalised banks whether sold and/or
under consideration of being sold were never brought by the petitioner before
CCI and NEC. What is stated above clearly shows that in respect of policy of
privatisation, Constitutional requirements of provisions regarding CCI and NEC
were not followed and Provinces were not given opportunity to participate in
the formulation of such policies. It also appears that on the ground of
maladministration, corruption and nepotism of the Federal Government there was
sufficient material before the President which has been produced in the Court
as Annexures ‘A’ to ‘A‑12’ and ‘B’ to ‘R’ which were considered in
support of the ground of dissolution.
47. Ground (e) in the order of dissolution is that a reign of terror
was unleashed by the functionaries and agencies under the control of Government
of the Prime Minister against the opponents of the Government including
political and personal rivals/relatives and mediamen. In the petition it is
stated that allegation is not supported by any concrete facts. In the written
statement filed on behalf of respondents it is stated that some
documents/information is supplied and additional documents would be produced
later. It appears that alongwith written statement no annexures were produced.
In the rejoinder allegation is denied and it appears that no specific instances
are quoted and no documents have been supplied in support of this ground of
dissolution, hence this ground has failed.
48. Next ground in the order of dissolution is (f) which is divided
further into five parts. (f)(i) is that the Cabinet has not been taken into
confidence or decided upon numerous Ordinances and matters of policy. In the
petition it is stated that the first two parts of ground (f) in the order of
dissolution refer to internal management of the Cabinet. The third, fourth and
fifth sub‑grounds are vague and no particular facts have been referred
to. Service laws have been in existence for almost two decades and also Public
Service Commission under the Constitution of 1973. Respondents claim that in
matters of legislation and policy the Cabinet was not taken into confidence and
a number of draft Ordinances were not placed before the ‑Ciaf~inct for
approval. Such complaint was made by Mr. Hamid Nasir Chatha in public statement
which had been annexed. His main grievance was that Cabinet was composed of 48
Ministers and yet decisions were made by the kitchen Cabinet consisting of only
five persons including the petitioner and other Ministers were ignored. In the
rejoinder to the written statement, denial of allegation was reiterated with
assertion that all decisions have been taken by the Cabinet including
Ordinances and matters of policy. In support of assertion no proof is produced
to show that Ordinances and other matters of policy were approved by the full
Cabinet. In the circumstances it can be said that there is weight in the
statement of Mr. Hamid Nasir Chatha who was at the relevant time Member of the
Cabinet. If he had participated in the Cabinet meetings in the approval of
Ordinances and other policy matters, he would not have raised this objection
and subsequently tendered his resignation.
49. Ground taken is that petitioner as Prime Minister prohibited the
Federal Ministers from calling upon the President. About this ground in the
petition stand is taken that it was incorrect that Federal Ministers were
called upon not to see the President although it was not at all necessary for
them to do so. Learned Attorney‑General
has drawn our attention to Article 46 under which it is the duty of the Prime Minister to communicate to the
President all decisions of the Cabinet relating to the administration of the
affairs of the Federation and proposals for legislation. Under this provision
the President can require to submit for consideration of Cabinet matter on
which decision had been taken by the Prime Minister or a Minister but which had
not been considered by the Cabinet. Under Article 48 the President is to act on
the advice of the Cabinet or the Prime Minister. Clause (4) of this Article
provides that the question whether any, and if so what, advice was tendered to
the President by the Cabinet, the Prime Minister, a Minister or Minister of
State shall not be inquired into in, or by, any Court, Tribunal or other
Authority. This shows that the President can see the Ministers as permitted by
the Constitution.
50. Ground f(iii) covers allegation that resources and agencies of the
Government of Federation including statutory Corporations, authorities and
banks were misused for political ends and purposes and for personal gain. No specific
instances have been ‑quoted in the written statement. Likewise ground
f(iv) also contains vague allegations of massive wastage and dissipation of
public funds and assets at the cost of national exchequer. No specific
instances have been quoted. Allegations are vague and not supported by
documents. Ground f(v) is that Articles 240 and 242 have been disregarded in
respect of Civil Services of Pakistan. No proof is produced in support of this
ground.
51.. Ground (g) in the order of dissolution is that serious allegations
were made by Begum Nuzhat Asif Nawaz as to the highhanded treatment meted out
to her husband, the late Army Chief of Staff and further allegations as to the
circumstances culminating in his death indicated that the highest functionaries
of the Federal Government had been subverting the authority of the Armed Forces
and the machinery of the Government and the Constitution itself an the petition
allegation is denied as factually incorrect. It is admitted that Begum Nuzhat
Asif Nawaz made a statement to the Press without filing F.I.R. On coming to
know of the allegation, the Federal Government promptly appointed a high‑powered
Commission of three Judges of the Supreme Court to look into the case even
before such request was received from the Presidency. In the written statement
assertion is made that the Commission of Enquiry was appointed at the instance
of the President. Copy of letter from the President was received in’ the
Secretariat of Prime Minister at 5‑50 p.m. and not at 10 p.m. as claimed
by the petitioner. Copy of the receipt Exh.P/3 has been produced. No further
comment on this point is called for as it is understood that the, Commission of
Enquiry has submitted the report to the Government. The learned Attorney‑General
submitted that on such important matter no action was taken by the Prime
Minister and Enquiry Commission was appointed after the President intervened.
52. The last ground in the order of dissolution is (h) which is to the
effect that the Government of the Federation was not in a position to meet
properly and positively the threat to the security and integrity of Pakistan
and grave economic situation confronting the country, necessitating the
requirement of a fresh mandate from the people of Pakistan. In the petition
allegittion contained in this ground is denied relating to grave economic
situation as factually incorrect. On the contrary reliance was placed on the
statement of Finance Minister in the Care‑taker Cabinet, who made a
public statement that reforms of the petitioner’s Government would continue. It
would be pertinent to state here that Foreign Minister in the Care‑taker
Cabinet alongwith Foreign Secretary brought some confidential documents for
perusal of the Court. Proceedings were held in camera in presence of learned
counsel for both sides. Documents were of sensitive nature and I do not propose
to make any comment on them. All what I feel inclined to say right now is that
such lapses on the part of the Federal Government could have caused very strained
relations between our country and the, neighbouring country.
54. In the case of Tariq Rahim (PLD 1992 SC 646) the Federal Government
of Ms. Benazir Bhutto was dismissed and National Assembly dissolved under
Article 58(2)(b), which again became subject‑matter of very detailed
analysis and the concluding paragraph is as under:‑‑‑
“This much for the background of the Constitutional power, its scope
and meaning in the past and in the contemporary decisions outside Pakistan. In
Haji Muhammad Saifullah Khan’s case PLD 1989 SC 166 our Constitutional
provision has received full attention and its meaning and scope authoritatively
explained and determined. It is an extreme power to be exercised where there is
an actual or imminent breakdown of the Constitutional machinery, as
distinguished from a failure to observe a particular provision of the
Constitution. There may be occasion for the exercise of this power where there
takes place extensive, continued and pervasive failure to observe not one but
numerous provisions of the Constitution, creating the impression that the
country is governed not so much by the Constitution but by methods extra‑Constitutional.”
55. In that reported case in all rive grounds were mentioned in support
of order of dissolution. The first ground was that utility and efficacy of
National Assembly as a representative institution and its mandate were defeated
by internal dissensions, scandalous ‘horse‑trading’ and failure to
discharge substantive legislative functions by the National Assembly. Comment
has been made already in the above paragraphs of this judgment about the main
charge of horse‑trading, which was accepted as carrying the day in spite
of the fact that no offence under the relevant law was made out but it was
accepted on moral grounds ignoring its existence when it was being practised by
the Opposition against the Government of the day. Reasons given in respect of
defection in that case by this Court could be adopted by way of analogy in
respect of mass resignations of the members of the National Assembly, but this
has not been done. In any case this ground was sustained in favour of dissolution for the reason that material
was produced and was available with the President in support of the ground.
56. In the reported case of Tariq Rahim, the second ground was that
sessions of Council of Common Interests and National Finance Commission were
not summoned and in that connection observation was made by this Court in the
judgment that there was sufficient correspondence on the record to indicate
that persistent requests were made by the Provinces for sessions of these
Constitutional institutions and instead of intercession of the President no
heed was paid and Constitutional obligations were not discharged. In the
instant case there is voluminous material on the record in support of similar
allegation to the effect that privatisation policy has been taken in hand by
the Federal Government without formulation and regulation of policies in the
meeting of Council of Common Interests and thereby Provinces have been deprived
of participation and voicing their grievances but material on this ground is
rejected. Even applications of the Provinces to join the proceedings as
necessary and affected parties in this case have been rejected.
57. In Tariq Rahim’s case grounds of corruption and nepotism in the
Federal Government and misuse of authorities, resources and agencies of the
Government including Corporations and Banks and undermining of Civil Services
of Pakistan, were held to be independently insufficient to warrant action of
dissolution but coupled with other grounds of horse‑trading and not
allowing functioning of Council of Common Interests and National Finance
Commission, were declared to be sufficient to justify action of dissolution. As
against rive grounds enumerated in the case of Tariq Rahim in the instant case,
there are eight grounds and heavy load of material produced in support of such
grounds including speech of the Prime Minister on 17‑4‑1993 on
television in which confrontation and deadlock with the President is admitted
for which the President is held liable with allegations of partisanship and
helping conspirators to destabilise the Govcrnment.
58. In my humble opinion when Constitutional petition was entertained
in this case in this Court straightaway without allowing it to be heard in the
High Court and since there is no other forum of appeal after this Court, it was
the bounden duty of this Court to have scrutinised the material produced in support of grounds of dissolution with more
care and caution in conformity with guidelines laid down in the cases of Haji
Saifullah Khan and Khawaja Ahmed Tariq Rahim decided by this Court earlier in
point of time.
59. In Haji Saifullah Khan’s case PLD 1989 SC 116 order of dissolution
was held to be invalid and even then importance was attached to the appeal to
the political sovereign. It has been held in that case that right of
dissolution is the right of appeal to the people and all the Constitutional
conventions are intended to produce harmony between the legal and political
sovereign. In a democratic system the dissolution of a representative body like
the National Assembly has always been taken in Parliamentary form of Government
to be in essence an appeal from legal to the political sovereign. It is
ultimately the verdict of the political sovereign which determines the rights
or the power of a Cabinet to retain office. All what has been said above are
the observations of this Court in connection with interpretation of Article
58(2)(b).
60. in my humble opinion Article 58(2)(b) of the Constitution has come
to stay in the Constitution whether it is liked or abhorred. Constitutions of
two countries are not alike because Constitution of each country is framed
keeping in view the objective conditions, historical and cultural background
with pronounced customs and religious ethos. If Article 58(2)(b) has come into
existence and forms part of the Constitution on account of some compromise and
it is disapproved now it can be removed or diluted or amended in the manner
prescribed in the Constitution. It is the function of the legislature to
legislate and of the Court to interpret the law. The Court cannot and should
not take upon itself the duty of entering into the field of legislature but
should confine itself to its original function of interpreting the provisions
of the Constitution as they are and other laws. While interpreting the
provisions of the Constitution, it becomes the duty of the Court to see that
interpretation is done in such a manner which advances the noble object of
workability of the Constitution. The provisions of the Constitution cannot be
interpreted by the Court in such narrow form to make that provision almost
redundant and meaningless.
61. By rejecting the material in support of grounds of dissolution in
the instant case, interpretation of Article 58(2)(b) is rendered by this Court
narrowing down its scope to almost zero point which amounts to declaring that
no President would be able to ever dissolve the National Assembly and dismiss the Government of the Prime Minister in spite
of the fact that he has substantial material in his possession, because the
Court is not satisfied with intrinsic value of the material. In other words
Article 58(2)(b) is rendered almost redundant which can be done by the
legislature only.
62. 1 see no reason to justify departure from the guidelines laid down
in the cases ‘of Haji Saifullah Khan and Khawaja Ahmad Tariq Rahim for
consideration of material in support of grounds of dissolution. I see no
difference in the material produced in support of grounds of dissolution in the
case of Tariq Rahim and in the, present cast. The present fine of reasoning in
the majority judgment can be accepted only when positive assertion is made that case of Khawaja Ahmed Tariq Rahim was
wrongly decided.
63. In so far legal aspect is concerned, there is no dispute about the
fact that the Court can examine the reasons and material in support of grounds
of T dissolution in order to find out whether it has any rational nexus with
the .satisfaction of the President. It is so held in the case of S.R. Bommai
and others v. The Union of India and others (AIR 1990 Karnataka 5). In the
reported case under Article 356 of the Indian Constitution the President can
issue proclamation if he is satisfied from the report of the Governor that a
situation has arisen in which Government of State cannot be carried on in
accordance with the provisions of the Constitution.
64. In the case of Mrs. Sajida Begum and others v. Union of India and
others AIR 1977 SC 1361, it is held that the Court has power to question the
satisfaction of President under Article 356 and such satisfaction can be based
on material other than the Governor’s report. In the case of A.K. Roy v. Union
of India and another AIR 1982 SC 710, it is held that satisfaction of the
President mentioned in Articles 123 and 356 of the Constitution of India is
under justiciability and observation in AIR 1977 SC 1361 was no longer good law
in view of the 44th Constitutional amendment.
65. In the case of Capt. Kanwaijit Singh v. Union of India (AIR 1991
Punjab and Haryana 54), on Governor’s report on facts disclosing failure of
Constitutional governance in State of Punjab President’s Rule was imposed. It
was held that Governor’s report was to be read as a whole and on such reading
it appeared that satisfaction of the President was neither arbitrary nor for
any extraneous consideration. In view of the case‑law from Indian
jurisdiction it appears that in the Indian Constitution satisfaction of the
President mentioned in Articles 123 and 356 has been made justiciable but these
provisions are somewhat different from Article 58(2)(b) in our Constitution
which gives higher status to the President to exercise his discretion. In any
case the scope of the power under Article 58(2)(b) has been examined by this
Court in great detail.
66. In the case of The State v. Zia‑ur‑Rahman and others
PLD 1973 SC 49, question of trichotomy of powers between different organs under
the Constitution came up for detailed consideration and it was held that
Supreme Court has never claimed to be above the Constitution nor to have the
right to strike down any provision of the Constitution. It has accepted the
position that it is a creature of the Constitution that it derives its powers
and jurisdiction from the Constitution and that it will even confine itself
within the limits set by the Constitution which it had taken oath to protect
and preserve but it does claim and has always claimed that it has the right to
interpret the Constitution and to say as to what a particular provision of the
Constitution means or does not mean, even if that particular provision is a
provision ‘seeking to oust the jurisdictionof this Court.
67. In the case of Fauji Foundation and another v. Shamimur Rehman PtD
1983 SC 457 it is held that in the Constitutional system of Pakistan though
there is trichotomy of powers between executive, legislative and judiciary yet
each organ or branch of it operates in defined field of course with inherent
limitations that one organ or sub‑organ may not encroach upon legitimate
field of other.
68. it is held in the case of Dilip Kumar Sharma and others v. State of
Madhya Pradesh AIR 1976 SC 133 that if two constructions are possible upon the
language of the statute,.the Court must choose the one which is consistent with
good sense and fairness, and eschew the other which makes its operation unduly
oppressive, unjust or unreasonable, or which would lead to strange,
inconsistent results or otherwise introduce an element of bewUdering
uncertainty and practical inconvenience in the working of the statute.
69. 1 am
of the opinion that in view of the relevant case‑law mentioned above,
this Court as highest Court of the country has to act within the limitations
prescribed by the law while in the process of interpretation of the
Constitution and the law. This Court can interpret but not legislate and while interpreting can narrow down the
scope but not so much that the provision under the comment is rendered almost
redundant. So far Article 58(2)(b) of the Constitution is concerned, it is
already interpreted and construed very ably
in the cases of Haji Saifullah Khan and Khawaja Ahmed Tariq Rahim as mentioned
above. Power under Article 58(2)(b) can be exercised by the President when there is actually an
imminent breakdown of the Constitutional machinery
and there is failure of not one but many provisions of the Constitution giving
impression that country is being run by methods extra Constitutional. The President must form his opinion on the
basis of material before him. From
the FuIl Bench of 11 Judges, which has heard the present case, 7 Judges are
same, who heard the previous case of Ahmad Tariq Rahim in the Full Bench of 12 Judges of this Court. From those 7
Judges, six upheld
the order of .
dissolution passed by the same President dismissing Government of the Prime Minister Ms. Benazir Bhutto
dissolving National Assembly. Three more
Judges of the present Bench maintained order of dismissal of the Government and dissolution of the
National Assembly while hearing Constitutional
petitions in the High Courts at Lahore and Karachi. So from the present Bench of 11 Judges, 9 Judges having
upheld order of dissolution in the previous
case of Tariq Rahim are now of the view that in the present case material in support of grounds of
dissolution is not sufficient and order of dissolution is without lawful
authority and of no legal effect.
70. With respect I say that I do not feel inclined to agree with the
majority view. I am of the opinion that Article 17(2) of the Constitution does
not give Fundamental Right to the political party to conclude its tenure of
office.
Further I do not agree that by mentioning subversion of the
Constitution in the ,order of dissolution, Fundamental Right of the Prime
Minister under Article 14 of the Constitution is violated nor there is any
justification to conclude that the Prime Minister was being prevented by the
President forn V, extending political activity of the executive Government of
Federation to the Federally Administered Tribal areas.
71. Somehow or the other I regret to say that I have not been able to
reconcile myself to agree with the reasoning advanced for taking the different
view now in ‑this case than from the view previously taken in the case of
Khawaja Ahmed Tariq Rahim when in both the cases the allegations were more or
less the same and material produced in support of grounds of dissolution is
much more in the present case than in the previous case. One extraordinary
feature ‑ of the present case is that the Prime Minister made public
address on television criticising the President openly declaring confrontation
resulting in situation in which Government of Federation cannot be carried on
in accordance with the provisions of the Constitution justifying fully well
appeal to the electorate. It could have been left to the political sovereign to
decide the matter. I am also of the view that Article 58(2)(b) it an
independent provision under which the President is empowered to dissolve the
National Assembly in his discretion if he is satisfied that a situation has
arisen in which the Government of Federation cannot be carried on in accordance
with the provisions of the Constitution and an appeal to the electorate is
necessary. Opinion of the President cannot be substituted by the Court. If he
has formed such opinion and the grounds of dissolution are supported by
material which was available before him at the time of formation of such
opinion, the Court should allow order to stand and political sovereign to give
final decision.
72. It is
understandable that in the case of Haji Saifullah Khan even if order of
dissolution was found to be invalid, restoration of the National Assembly and
the Government was not allowed for the reasons that administrative machinery
was fully geared up for election which could provide opportunity to all
political parties to participate as previous elections were held on non‑party
basis. Another reason was that writ jurisdiction was discretionary and that
discretion could be validly refused because greater harm could have been
caused, if relief had been allowed and national interest had to be given
precedence over right of individuals. In Tariq Rahim’s case the Federal
Government of Ms. Benazir Bhutto was dismissed
and National Assembly was dissolved. There was material in support of
grounds of dissolution and the same was considered to be * sufficient to
justify action of dissolution. In the instant case there is complete ‘
deviation from the guidelines laid down in the case of Tariq Rahim. So far
consideration and availability of material in support of grounds of dissolution
is concerned although more grounds exist in the present case as alleged in the
order of dissolution for which voluminous material is produced but the ‑same
is rejected for reasons, which to me, appear to be insufficient.
73. May be I am wrong and am imagining the things unnecessarily and I
hope that I am wrong but from what it appears to me that there is no difference
in the case of Khawaja Ahmed Tariq Rahim and in the present case, so far
allegations, grounds for dissolution and material produced in support thereof
are concerned. In the present case departure is made and same yardstick of evaluation
of material is not applied. Seemingly it so appears that two Prime Ministers
from Sindh were sacrificed at the altar of Article 58(2)(b) of the Constitution
but when turn of Prime Minister from Punjab came the tables were turned.
Indisputably right at the very outset of the proceedings indications were given
that decision of the Court would be such which would please the nation. It
remains to be seen whether what would please the nation, would be strictly
according to law or not. In, my humble opinion decision of the Court. should be
strictly in accordance with law and not to please the nation.
What may please the nation may turn out to be against the letter and
spirit of the law and the Constitution.
74. In my opinion for the present crisis in the country the solution is
not restoration of the Government and the National Assembly but appeal to the
political sovereign which is a Constitutional remedy. At the time when
order of dissolution was passed, two pillars of the Government of Federation
had already reached point of no return and reconciliation between them does not
appear to be likely. In such circumstances it would be futile to hope
that chapter of bitterness in the past would be forgotten and, they would work
hand in hand for smooth sailing and success. In such circumstances restoration
would do more harm than good and political situation would deteriorate
further giving open licence to horse‑trading to both sides for
winning support ‑of the members of the Assemblies by fair means or foul,
which would most certainly be inconsistent with running of the Government and
flourishing of the democratic institution in accordance with the provisions of
the Constitution. I have written this dissenting judgment just to keep the
record straight and to say that in my humble .opinion it was a fit case in
which same result should have been announced as in the previous case of Tariq
Rahim. I would, therefore, dismiss this petition.
MUHAMMAD RAFIQ TARAR, J.‑I
have carefully gone through
the very learned judgments of the Honourable. Chief Justice and my illustrious
brothers Shariur Rahman, Ajmal Mian, Saleem Akhtar and Saeeduzzaman Siddiqui,
JJ. They have exhaustively dealt with all the issues arising in the case.
However in view of the importance,of the questions involved I consider it
appropriate to apend a note of my own so as to highlight certain features
arising in the, case.,
2. Brie‑fly
stated, the facts of the case, are that President ~Ghulam Ishaq Khan, vide his
order, dated 18th April, 1993, dissolved the National Assembly of ‘Pakistan, in
exercise of Wis power, under causc (2)(b) of Article 58 of the Constitution of
Pakistan, 1973, with immediate effect and dismissed the Prime Minister and the
Cabinet, who ceased to hold office forthwith. Mr. Nawaz Sharif, the dismissed
Prime Minister has challenged, directly in this Court, the order, ‑through
these proceedings, for various reasons, alleging that they have no nexus or
connection with the ground mentioned in Article 58(2)(b) and therefore, the
order of dissolution merits to be set aside.
3. The respondents objected to the maintainability of the petition on
the ground that there being no enforceability of the fundamental rights
involved, the petitioners ought to have initiated their proceedings, in the
High Court, under Article 199, and not directly in this Court. 1, however, do
not agree and adopt the reasoning of the learned Chief Justice and my brother
Shafiur Rahman, J., in this regard and hold that the petition is maintainable.
4. The Article 58(2)(b), under which the above action had been taken,
was inducted for the first time, in the 1973 Constitution, by P.O. 14 of A85,
with effect from 2nd March, 1985. It was a part of the package by which General
Zia‑ul‑Haq wanted to change a figurehead President into a potent
one. Earlier, under Article 48, the performance of his functions by the
President were couched in the phrases like ‘the President may’ (Art.54), ‘the
President shall’ (Arts. 99r and 100), ‘the President may direct’ (Arts. 104,
145), ‘the President shall have power’ (Art. 45), ‘the President after
consultation with’ (Arts. 72, 177, 193), ‘the President is satisfied’ (Arts.
232, 234), ‘the President may by Order’ (Art. 268(3)), (the list is indicative
but not exhaustive) but in all those matters he was bound by the advice of the
Prime Minister.
,5. Not only that the clause (3) of Article 48 further provided that:
“Save as otherwise provided in any rules made under Article 99, the
orders of the President shall require for their validity the countersignature
of the Prime Minister.”
The Articles 48 was substituted by the P.O. 14 of 1985. It was then
amended in the present form by the 8th Amendment, to divide the functions of
the President into two air‑tight compartments. The President was to be
bound by the advice of the Cabinet or the Prime Minister in all the matters
except those in respect of which he was empowered by the Constitution to act ‘in
his discretion’.
i
6. The Article 58(2) when amended by P.O. 14 of 1985 had also a similar
new phrase added, which reads as follows:
“The President may also dissolve the National Assembly in his
discretion, where in his opinion, an appeal to the electorate is necessary.”
However, when Article 58(2) was further amended by the 8th Amendment,
it started with the prefix
notwithstanding anything contained in’ clause (2) of Article 48 1. This clause came up for interpretation in Haji
Saifullah case (infra) where the Supreme Court held as under:
“Thus, notwithstanding the addition of words ‘and the validity of
anything done by the President in his discretion shall not be called in
question on any ‑ground whatsoever’ after the words “Notwithstanding
anything contained in clause (1), the President shall act in his discretion in
respect of any matter in respect of which he is empowered by the Constitution,
to do so” in clause (2) of Article 48 of the Constitution, the provisions of
Article 58(2), as finally adopted by the Parliament in the Constitution (Eighth
Amendment) Act, 1985, had the effect of placing some limits on the otherwise
absolute powers of the President. Article 48(3) which made the President the
sole judge of the validity of his discretion, was omitted....”
7. The result was that though the President had made an inroad, in the all
supremacy of the Prime Minister, under Article 48, with the phrase, ‘in his
discretion’ and avoided in certain matters his binding advice, yet he did not
succeed in his attempt in respect of Article 58(2). Thus notwithstanding the
words ‘in his discretion’, an action by the President, even under Article
58(2), lost exclusiveness and immunity and became justiciable.
8. General Muhammad Zia‑ul‑Haq, its architect, made the
first use of clause (2)(b) of Article 58, on 29th May, 1988, when he dissolved
the National Assembly and the Cabinet of Mr. Muhammad Khan Junejo. The order of
General Muhammad Zia‑ul‑Haq was challenged in the Lahore High
Court, where it was held that the impugned ordir bore no nexus or connection
with the Constitutional power and was, therefore, unconstitutional. The High
Court, however, refused to restore the National Assembly for the reason that:
“The entire administrative machinery of the Federation and the
Provinces is geared up to hold the general elections on the 16th November, 1988,
and the people, who were previously not in a position to vote for the
candidates belonging to certain political parties which had been banned, are
now ready and impatient to exercise their vote freely and voluntarily without
any restriction”. (See Khawaja Muhammad Sharif v. Federation of Pakistan PLD
1988 Lah. 725).
9. An appeal was taken to the Supreme Court and it may be useful to
reproduce the rule laid down by it, in that case reported as Federation of
Pakistan v. Saifullah Khan PLD 1989 SC 166:
“The expression ‘cannot be carried on’ sandwiched, as it is, between ‘Federal
Government’ and ‘in accordance with the provisions of the Constitution’,
acquires a very potent, a very positive and a very concrete content. Nothing
has been left to surmises, likes or dislikes, opinion or view. It does not
concern itself with the pace of the progress, the shade of quality or the
degree of performance or the quantum of achievement. It concerns itself with
the breakdown of the Constitutional mechanism, a stalemate, a deadlock in
ensuring the observance of the Constitution.”
10. The Court also quoted with approval, the following observation of
the I Law Minister, made in the Parliament, at the time of introducing the a
amendment to the Constitution, in order to explain its object. He stated that
it v was meant to place a check on the President and to meet with the
conditions as developed in 1977, attracting suspension of the Constitution and
imposition of P Martial Law. He said:
“In that case, when the machinery of the Federation is totally blocked
and it becomes absolutely impossible for the Federal Government to function in
that case, the President will dissolve the Assembly.”
11. Thereafter, the Court scrutinised each ground of the Order
separately t to see if it had any nexus or connection with the object of clause
(2)(b) of the 4 Article 58 and found that none existed. It, however, refused
the relief, after I holding the impugned order as unconstitutional, on the
ground that‑‑‑
“the whole nation is geared up for elections and we do not propose to
do anything which makes confusion worse confounded and create a greater state
of chaos which would be the result if the vital process of elections is
interrupted at this juncture.”
it may be mentioned here that the proceedings in that case had been
taken up after about three months of the passing of the impugned order and when
the election process bad reached the crucial stages.
12. /On
I
“Reference was made in detail to the existence of facts, like
corruption and horse‑trading among the members of the National Assembly,
misuse of D.I.B. Secrets Service Funds and PAY. and P.I.A. aircraft during No‑confidence
Motion against the former Prime Minister, nonconvening of meetings of Council
of Common Interests and National Finance Commission, ridiculing the Senate and
Judiciary, undermining the Civil Service structure and service of statutory
corporations tapping <31 telephones of dignitaries and political
personalities, non‑giving of powers under Article 245 of the Constitution to the Army already deployed to control
internal disturbances in Sindh and existence of unabating confrontation between
the Federal Government and two of the Provincial Governments to show that the
President had rightly exercised his jurisdiction to dissolve the National Assembly, to appoint Care‑taker Cabinet
and fix the 24th of October for fresh elections.‑
13. The High Court, following the case of Saifullah Khan (supra), unanimously
held that “The grounds which weighed with the President for passing the
impugned order had direct nexus with the preconditions prescribed by Article
58(2)(b) of the Constitution” and so the Government of the Federation could not
be carried on in accordance with the provisions of the Constitution, and an
appeal to the electorate was necessary. See Ahmad Tariq Rahim v. Federation of
In appeal, the Supreme Court, by majority, in the case reported as Ahmad Tariq Rahim v. Federation of
Pakistan PLD 1992 SC 646 at 664‑5, laid down the following rule:‑‑‑
“It is an extreme power to be exercised where there is an actual or
imminent breakdown of the Constitutional m achinery, as distinguished from a
failure to observe a particular provision of the Constitution There may be an
occasion for the exercise of this power where there takes place extensive,
continued and pervasive failure to observe not one but numerous provisions of
the Constitution, creating the impression that the country is governed not so much by the
Constitution but by methods extra‑Constitutional.”
14. Rustam S. Sidhwa, J. expressed his view at pages 687‑8 of the
above report as under:‑‑‑
“The word ‘cannot’ (in Articles 58(2)(b) and 112(2)(b)) presupposes a Constitutional
inability in the nature of a breakdown or dislocation .... The words ‘and an
appeal to the electorate is necessary’ highlight the breakdown to be of such a
magnitude that an appeal to the electorate is perhaps the only remedy to the
situation .... The wording of the two provisions are sufficient to admit of a
flexible approach either way and, without being dogmatic in interpreting these
provisions, the facts of the case, in the background of overall situation and
political climate then prevailing and the reasons leading to the breakdown,
would, all taken together, determine what the correct approach should be.”
Then referring to an Indian case from Rajasthan AIR 1977 SC 1361, para.
40 the learned Judge further observed as under:‑‑‑
..The same position, obtains for these two
provisions in our jonstitution. Preventive, so as to prevent failure of the
Constitutional machinery taking place by nipping in the bud a breakdown that is
imminent. Curative, so as to mend the ill‑effects of a breakdown that has occurred The words ‘cannot be carried on in accordance with the provisions
of the Constitution’, could also cover non‑compliance of almost every
provision of the Constitution with
this background one
would have to act carefully when appraising a case under Article
58(2)(b) which relates to dissolution of Assembly .....
.... these provisions, i.e. Articles 58(2)(b) and 112(2)(b), in keeping
with the spirit of balance and restraint, would have to be construed in their
circumscribed sense to cover only cases of failure or breakdown of
Constitutional machinery, or else it would lead to Constitutional dictatorship.
To hold that a particular provision of the Constitution was not complied with,
the National Assembly could be dissolved under Article 58(2)(b) of the*
Constitution, would amount to an abuse of power. Unless such a violation
independently was so grave that a Court could come to no other conclusion but
that it alone directly led to the breakdown of the functional working of the
Government, it would not constitute a valid ground.”
15. According to A.S. Salam, J., the power of the dissolution of the
National Assembly had vested exclusively in General Muhammad Zia‑ul‑Haq
by virtue of Article 41(7) and it died with him in the air crash. So, in his
view, it was not available to his successor. No other member of the Court
shared his views. Even Sajjad Ali Shah, J, who concurred with him in the
following observation expressly disagreed with the above. The view shared by the two learned Judges is as follows:‑‑‑
“Further, the provision is that the Government of the Federation cannot
be carried on ‘in accordance with the Constitution’. Where was the breakdown of
the Constitution? The provision may come into play only when the Constitutional
machinery has completely broken down. Where had it broken down or come to
standstill? All Constitutional authorities were there and functioning.”
16. The net result
arrived at after the entire discussion, in the above two cases is, that the
Court accepted the proposition that the President can dissolve the National
Assembly for the acts of commission and omission of the Prime Minister or the
Cabinet, and that it has to test each and every ground of the President for
dissolving the National Assembly, on the following touchstones,
and see that they satisfy the prescribed requirements, in order to
condone the action taken:
(a) Was there an actual or
imminent breakdown of the Constitutional machinery, as distinguished from a
failure to observe a particular provision of the Constitution?
(b) Has there taken place
any extensive, continued and pervasive failure to observe not one but numerous
provisions of the Constitution, creating the impression that the country is
governed not so much ‑by the Constitution but by methods extra‑Constitutional?
(c) is there an imminent
danger of breakdown of the Constitutional machinery so as to take an immediate action for nipping it in the
bud?
(d) Is it imperative to mend
the ill‑effects of a breakdown that has occurred ?
17. It is pertinent to note that in both the cases discussed above, the
Article 58(2)(b) was looked at from a different perspective, resulting in the
observations reproduced above. There, the acts of omission and commission of
the Cabinet and the Prime Minister were made the basis for dissolution though
they are responsible not to the President but to the National i Assembly.
However, in my humble view the right direction to appreciate its real and
intrinsic worth and to perceive its natural and correct import is different
and, therefore, a different view of the matter may emerge, if it is beheld from
that angle. Article 58(2)(b) mentions in its text, three organs of the State:
(i) The President;
(ii) The National Assembly;
and
(iii) The Government of the
Federation
All those three organs are very important constituents of the State and
the Constitution makes independent and distinct provisions for their creation
and demise. It may be pertinent to note that the Cabinet and the Prime Minister
do not figure there as such.
18. The National Assembly consists of the chosen representatives of the
people, as mentioned in the Objectives Resolution. They are elected through
adult franchise and they form/create the National Assembly under Article 51.
Its normal term of office is 5 years. The members can individually resign under
Article 44, so that if all the members resign, it will result in the
dissolution of the entire National Assembly. However, Article 58 * also
empowers both the President and the Prime Minister, separately, to dissolve the
National Assembly, only for the specific reasons given there.
19. Article 41 provides for the election of the President by the
members of the National Assembly, alongwith others. Vide Article 90 of the
Constitution, the executive authority of the Federation vests in him, to be
exercised by him either directly or through officers subordinate to him, in
accordance with the Constitution. Article 99 further provides that all
executive actions of Federal Government shall be expressed to be taken in the
name of the President and the manner of doing that is to be provided by rules.
His tenure of office is given in Article 44. The normal period is 5 years. The
President can, however, be removed from office even earlier than five years, on
account of physical or mental incapacity or by impeachment on a charge of
violating the Constitution or gross misconduct, by a two‑third majority
of the members, in a joint sitting of the Senate and National Assembly, after
investigation and giving the President an opportunity of defence. His removal
for subverting the Constitution is not there and has to be located somewhere
else, as discussed later in para. 30.
20. The Government of the Federation comprises of the President and the
Cabinet. The President has already been discussed above. The Cabinet of
Ministers comes into being under Article 91 and its duty under Article 91(l) is
to aid and advise the President in the exercise of his functions. It is
constituted of a Prime Minister and Ministers to be appointed by the president,
on the advice of the Prime Minister, under Article 92. The Prime Minister must
command the confidence of majority of the Members of the National Assembly.
Under clause (4) of Article 91, the Cabinet together with Ministers and‑the
Ministers of State is collectively responsible to the National Assembly.
21. The Prime Minister is also obliged under Article 46 to communicate
to the President all decisions of the administration of the affairs of the
Federation and proposals for legislation and to supply such information as may
be called for by the President. Again under clause (c) of Article 46 the
President may require the Prime Minister to submit for consideration of the
Cabinet any matter on which a decision has been taken by the Prime Minister or
a Minister but which has not been considered by the Cabinet. Under the proviso
to Article 48(l) the President may require the Cabinet or the Prime Minister to
reconsider the advice sent to him either generally or otherwise before he is
obliged to act on it. The President thus is part of the administration and has
the power to influence the decisions of the Cabinet, the Prime Minister and the
Ministers, which are to be made and enforced in his name.
22. Thus, the President is the ‘ executive head of the Federation
(Government of the Federation) and all actions are taken in his name. He also
participates to some extent in the executive decision‑making. Being a
part of the Government of the Federation, he cannot blame the Prime Minister
and the Cabinet alone for any unwise, illegal or even unconstitutional acts,
what to speak of punishing them. If the President thinks that the Cabinet was
aiding and advising him illegally, unconstitutionally or against public
interest, despite his caution and warning, the only way open to him, under the
Constitution, is to inform the National Assembly under Article 56 to which the ‑Prime
Minister/Cabinet is responsible or dissociate himself by resigning his office
under Article 44(3) of the Constitution informing the ‘nation about his doing
SO. However, he cannot blame the Prime Minister or the Cabinet in case the
National Assembly raises no objection or endorses the objected to action or
policy decision.
23. Again the President has no
power to dismiss the Cabinet of his ownThe sub‑Article (5) of Article 91
provides that the Prime Minister shall hold office during the pleasure of the
President, but the President shall not exercise his power unless he is
satisfied that the Prime Minister does not command the confidence of the
majority of the members of the National Assembly, in which case, he shall
summon the National Assembly and require the Prime Minister to obtain a vote of
confidence from the Assembly. Thus, the President has no power to remove the
Prime Minister or dismiss the Cabinet as long as the National Assembly offers
its confidence to him and protects him.
24. it is a well‑established principle of law that what is not
permitted to be .in done directly cannot be done I directly. It has been
noticed above that the Prime Minister who enjoys the confidence of the National
Assembly cannot be removed or dismissed by the President. The reason may be
that only the chosen representatives of the people are the repository of the
sovereign power. they, therefore, know best that is good for the people and
what is not. So if they approve the policies and the actions of the
Government,. the President has no power of his own of interference, in any
way.. Be that as it may, the President could not get rid of the Prime Minister
or the Cabinet indirectly, for the alleged faults of theirs, by dissolving the
National Assembly.
25. The
National Assembly is not subordinate to the President. The President is, in
fact, a part of the Parliament (National ~ Assembly and the Senate) but he can neither participate
in the discussion nor vote. He can address
them (Article 56), and is only to grant his assent to a Bill passed by the ‘Mailis‑e‑Shoora
(Article 75). When a Bill is presented to the President for his assent, he can only once return it to the
Majlis‑e‑Shoora, for reconsideration, in case he has any objection
to it. However, if it is presented to him again after reconsideration, he cannot refuse to give his assent, even if he
personally dislikes, or besides
every word of it. Further, as regards a money Bill, he cannot even require it,
howsoever obnoxious it may be in his opinion. The reason is that an assembly of the chosen
representatives of the people is considered much wiser and is supposed to know
more than ‑any single individual, howsoever prudent and intelligent he
might think and claim he is.
26. It is thus quite clear from the above discussion that the President
has neither a power to dismiss the Cabinet nor is he a controller or a
supervisor of the National Assembly. Rather, he is compelled to accept and give
his assent to whatever is done by the Cabinet on the one hand and the National
Assembly alongwith the Senate on the other. He, according to the various
provisions of the Constitution discussed above can, at the most, participate,
individually, as a counsel or a warner. Like any other member of the Cabinet,
he can influence but cannot veto. Rather he has an edge over others as he can
once veto the decision of the Prime Minister, the Cabinet or a Minister.
However, if his counsel or warning is not heeded ‑to, he has, like any
other member of the Cabinet, either to accept the things as presented to him,
by the majority decision or quit if he so desires.
27. With the above backdrop, I would revert to the question in hand.
The President is empowered to dissolve the National Assembly but only in
the situation mentioned in Article 58. 1
may, therefore, reproduce Article 58(2)(b), for consideration. It says‑‑
“Notwithstanding anything contained in clause (2) of Article 48, the
President may also dissolve the National Assembly in his discretion where, in
his opinion:‑‑
(b) a situation has arisen
in which the Government of the Federation cannot be carried on in accordance
with the ‘provisions of the Constitution and an appeal to the electorate is
necessary.”
28. It must be
appreciated that the Government of the Federation comprises the President as
the head of the executive (Article 90), and the Cabinet of Ministers, with the
Prime Minister at its head (Article 91). They collectively are responsible for
running the Government of the Federation, in accordance with the provisions of
the Constitution. The Cabinet is collectively
responsible to the National Assembly under Article 91(4), while the
President is under the control of the Parliament, i.e. the National Assembly
and the Senate, under. Article 47. The term ‘collective responsibility’ has
been ably discussed by my learned brother Shafiur Rahman, J., in his luminous
judgment with which I respectfully agree. Therefore, after a decision is made,
no
constituent of that decision‑making body can absolve himself of
it, whether he participated in the decision‑making or not; whether he
opposed the motion or proposed any amendment; or was even absent at that time.
In that view of the matter, the scrutiny of the governmental actions would then
lie with the Parliament, though even they cannot annul them as such, without
formally legislating against them, or by passing a resolution disapproving a
particular act of commission or omission of the Prime Minister or the Cabinet.
29. It has also been noticed in Article 91(5) that the President
cannot, straightaway, dissolve the National Assembly even if the Prime Minister
fails to get a vote of confidence from the National Assembly. He. h ‘ as to
first ascertain practically, under Art. 58(2)(a), that no other member enjoys
the confidence of. the National Assembly, before he acts to dissolve. Thus the
President has neither any control over the Cabinet nor has the National
Assembly been placed at his mercy, in his discretion or at his bald pleasure.
It is thus only the National Assembly which can decide the removal of one Prime
Minister and his Cabinet, by withdrawing its support and electing another Prime
Minister before the President may act under Article 58,. for Constitutional
reasons, justiciable before the superior Courts of Pakistan.
30. The upshot of the whole discussion is that the President has no
power to dismiss a Prime ‑ Minister, directly or indirectly, howsoever
illegal unconstitutional or against public interest his actions might look to
him. But if the person holding the office of the President pleases to remove a
Prime Minister, who enjoys the confidence of the National Assembly, under the
cloak of the powers contained in Article 58(2)(b) by dissolving the National
Assembly, he may be accused of subverting the Constitution within, the meaning
of Article 6 of the Constitution. It is pertinent to note that the protection
provided in Article 248 from accountability and the remedy provided in Article
47 of impeachment, do not cover the acts of subversion or abrogation of the
Constitution or even attempting or conspiring to do so. The dissolution of the
National Assembly, therefore, must be strictly covered by Article 58(2)(b), in
order to be condoned by the Courts and to avoid an ‘action under Article 6 of
the Constitution.
31. Article 58(2)(b) foresees one and only one situation, for
dissolution of the National Assembly and that is where in the opinion of the
President, the ‘Government of the Federation cannot be carried on in accordance
with the provisions of the Constitution and an appeal to the electorate is
necessary. It is thus not a mere omission to act, on or in violation of, one or
more Articles of the Constitution but a state of checkmake or a deadlock, which
may be brought about by violation of one or more provisions of the Constitution
separately or collectively,, as extracted from the two previous judgments of
the Supreme Court and’‑given in para. 16 above.
Further, the words “cannot be carried on” show the helplessness of the
Cabinet, in a situation, unchecked or brought about by the National Assembly or
some outside force against which even the National Assembly cannot afford a
protection or cure, so that the Cabinet cannot be helped to carry on the
Government of the Federation and it will have to go, with the National
Assembly.
32. It must be appreciated that premature dissolution of an Assembly is
a very severe punishment to members and moreso. to the people and the national
exchequer. The members lose their remaining term of office, provided by the
Constitution and they have to spend millions on fresh elections, with no
guarantee of success. The nation is deprived of the continuance of the policies
and projects, is exposed to instability and uncertainty, loses the confidence
of the Governments and investors at home and abroad, faces economic and
administrative chaos and is required to spend crores of rupees on the new
election. So, in the case of dissolution of Assembly, for the misdeeds of the
Cabinet, the punishment is awarded; not only to those few members who are in
the Cabinet but also to the other majority of the members of the National
Assembly whether they are in the opposition, the Independents or with the.
Treasury and also the people, for no fault of theirs.
33. A further question to be answered is, does the Constitution permit
P to pnnish N for the offence of G? The answer is an emphatic no. The import of
the Fundamental Rights 9. 10 and 12 to 15 supports the view. No system of law
anywhere in the world permits that. The Holy Qur’an announces emphatically that
“Each man shall reap the fruits of his own deeds: no soul shall bear another’s
burden.” (Q.6:165). In that view of the matter it will be wrong to say that the
President has the power, to dissolve the National Assembly, for the reason that
the Government of the Federation, in his view, is acting in illegal or
unconstitutional manner or it cannot be run in accordance with the
Constitution, because of its acts of commission or omission.
34. The fault has thus to be found, not in the working of the Prime
Minister or the Cabinet but in the working of the National Assembly. Again, it
is not every fault but only that fault which has rendered the working of the
Government of the Federation impossible and has also made in appeal to the
electorate necessary. What such faults can be? As the form of Government being
practised in Pakistan is derived from the parliamentary form of the United
Kingdom, one may wc~ help from where this system is prevalent, Dicey, In his
illustrious work (The, Law of the Constitution), 1%0 Edition, 4t page 420,
quotes from Freeman to say as follows:
“A Ministry which is outvoted in the House of Commons is in many cases
bound to retire from office.
A Cabinet when outvoted on any vital question, may appeal once to the
country by means of a dissolution.
The, party who for the time being command majority in the House of
Commons, have (in general) right to have their leaders placed in office.”
35. Dicey‑himself at pages 426‑427 says: ‘Thus, to say that
a Cabinet when outvoted on any vital question are in general bound to retire
from office, is equivalent to the assertion, that the prerogative of the Crown
to dismiss its
servants at the will of the Queen must be exercised in accordance with
the, wish of the Houses of Parliament ........
36. Wade in his Constitutional Law, 7th Edition, at page i18
says that “A Prime Minister, whose Government is defeated in the House of
Commons on a major issue, is expected either to resign or to request a
dissolution”. At page 82, he states: “There can never be any justification for
the dismissal against the advice of. the Primp Minister of a Ministry which
commands a majority in the House of Common’s Only if a break in the main
political parties took place could the personal discretion of the Sovereign
become the paramount consideration .... If the Sovereign ‘can be satisfied that
(1) that an existing Parliament is still vital and capable of doing its job,
(2) a general election would be detrimental to the national economy, more
particularly if it is followed closely on the ‑last election, and (3) he
could rely on finding another Prime Minister who was willing to carry on his
Government for a reasonable
(Muhammad Rafla Tarar Period
with a working majority, the Sovereign could refuse to grant a dissolution to
the Prime Minister in office”.
37. Mr. Strong in his ‘Modern Political Constitutions’ at Page 241
states that: “The Cabinet in Britain is, therefore, dependent on the good
opinion of Parliament, which, under modern conditions, means the confidence of
the House of Commons. This implies that the ultimate the electorate. As Walter
Bagehot acutely pointed out, the Cabinet is a creature, but unlike all other
creatures, it has the power of destroying the creator, i.e., the House of
Commons. For if the Cabinet is defeated in the Commons it can, instead of
resigning, advise the Queen to dissolve the Assembly upon which it depends.
38. It will be seen that the deadlocks emerge from the working of the
legislative bodies and jam the wheel of the Government. So, no action in the
nature of dissolution of the National Assembly or dismissal of the Cabinet by
the President will be justified where the Prime Minister enjoys the Confidence
of the House and no deadlock has appeared because of the working of the
National Assembly. The result is that if the National Assembly is working
smoothly and there, exists no deadlock for the Government to carry on its functions; the President
neither has the power to dismiss the Prime Minister and his Cabinet nor can he
dissolve the National Assembly.
39. Another important consideration to be closely looked at is about
the phrase and an appeal to the electorate is necessary, as stipulated in
Article 58(2)(b). The circumstances relied on by the President should
not only show the situation in which ‘the Government of the Federation cannot
be carried an in accordance with the provisions of the Constitution’ but that
nothing else in the Constitution can provide a remedy and therefore, ‘an appeal
to the elebtorate is necessary., It means that the extreme measure of
dissolution must not be resorted to if another alternative is available. An
illustration of this is found in Article 58(2)(b). It provided that:
“....the President may dissolve the where, in his opinion‑‑‑
National Assembly in his discretion
(a) a vote of no‑confidence having been passed against the Prime
Minister, no other member of the National Assembly is likely to command the
confidence of the majority of the members of the National Assembly, ‑ in
accordance with the provisions of the
Constitution, as ascertained in a session of the National Assembly
summoned, for the purpose ......
40. It will be seen that unlike the order of dissolution of the former
National Assembly in 1990 (Khawaia Tariq Rahim’s, case) the grounds whereof, on
judicial scrutiny, were held to have a direct nexus with ‑the conditions
prescribed by Article 58(2)(b) of the Constitution and the material forming
basis of the President’s opinion found sufficient, the facts and circumstances
of this case as given in the judgments of the learned Chief Justice and my
brother Shafiur Rahman, J. and which persuaded the President to form his
opinion to dissolve the National Assembly and dismiss the Cabinet go to show,
without any doubt that they had no nexus or connection with the constitutional
power and so the President was punishing the National Assembly for not
withdrawing their support to an ‘insolent’ and ‘rude’ Prime Minister and the
Cabinet.
It appears from the satisfaction, ‘as expressed by the President, with
regard to the previous conduct of the Prime Minister and his Cabinet, in
governance of the country, in his annual address to the joint session of the
Parliament, and the other material on the record of the case, from December,
1992, till the speech, dated 17th April, 1993 of the Prime Minister, that the
President had no.other grievance and by his impugned action wanted to punish
the Prime Minister, for his insolent speech made on the television on the 17th
April. Further, the contents of the impugned order neither answer the
requirements laid down by the Supreme Court, in its Iwo previous orders,
referred to above, as also by the learned Chief Justice and my learned brothers
in their judgments referred to in the opening para. nor the view that I have
taken’above. The view that the order was passed in a fit of anger and vengeance
is confirmed even by the address and the arguments of the learned R Attorney‑General
before us in the Court, the tenor whereof was that but for the speech of 17th
April the President may not. have dissolved the National Assembly on the next
day. The impugned order thus reflects the mind of a person.
41. it is further clear that the President, unfortunately assumed to
himself the position of a Judge sitting on the performance of the Government
and thought that he had the power to punish the Cabinet for the acts of
omission and commission as ascertained by him. He, therefore, taking himself as
the Authority and the Cabinet 4s civil servants, inflicted on them the major
penalty, as under the Efficiency and Discipline Rules. He. was, however,
totally mistaken that the Constitution conferred any such power on him. As said
above, the exclusive power in respect of all the charges levelled by him vested
in the National Assembly, to whom the Prime Minister and the Cabinet were
accountable. The National Assembly, however, did not find any fault with the
performance of the Cabinet and consequently took no action. Obviously, the
National Assembly seems to have been punished by the President for that
omission. His order, therefore, cannot be condoned.
42. The order of the President is not maintainable yet on another
ground also. The provisions and the principles as contained in the objectives
Resolution are now the substantive and effective part of the Constitution, view
of its Article 2A. According to the opening part of the Objectives Resolution
the sovereignty over the entire Universe belongs to Allah Almighty alone. The
law of Allah is thus supreme, immutable,, unsurmountable and unalterable and
every other man‑made law repugnant to it must be removed by Parliament or
Courts or by other organs of the State ‑in the mode contemplatedin the
Constitution. Almighty Allah has delegated His authority to be exercised by the people of Pakistan, within the limits
prescribed by Him, as a sacred trust. Acting against it will thus be breach of
trust also.
43. The impugned order is, therefore, declared to be unconstitutional
and void and shall be, deemed to have never been passed and promulgated.
Therefore, the National Assembly and the Cabinet shall be placed in the same
position in which they were before the impugned order of the President was
promulgated.
SALEEM AKHTAR,. J.‑‑l have had the privilege and benefit of
reading the exhaustive judgment proposed by my learned brother Shaflur Rahman,
J., but considering the obivious importance of the Constitutional and the legal
questions involved in this case without giving detailed facts which are so
copiously narrated in the judgment of my learned borthcr, I feel it appropriate
to express my opinion on those issues separately.
2. The petitioner, the former Prime Minister of Pakistan, was elected
as a member of the National Assembly in the year 1WO and being the leader of
the IJI party commanding majority became the Prime Minister. The National
Assembly by an order of the President dated 18‑4‑1993 was dissolved
and the Prime Minister was “dismissed”. The order reads as follows:‑‑
“The President having considered the situation in the country, the
events that have taken place and the circumstances, the contents and
consequences of the Prime Minister’s speech on 17th April, 1993 and among
others for the reasons mentioned below is of the opinion that the Government of
the Federation cannot be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary:‑‑
(a) The mass resignation of
the members of the Opposition and of considerable numbers from the Treasury
Benches, including several Ministers, inter alia, showing their desire to seek
fresh mandate from the people have resulted in the Government of the Federation
and the National Assembly losing the confidence of the people, and that the
dissension therein, has nullificd its mandate.
(b), The Prime Minister held
meetings with the President in March and April and the last on 14th April, 1993
when the President urged him to take positive steps to resolve the grave
internal and international problems confronting the country and the nation was
anxiously looking forward to the announcement of concrete measures by the
Government to improve the situation. Instead, the Prime Minister in his speech
on 17th April, 1993 chose to divert the people’s attention by making false and
malicious allegations against the President of Pakistan who is Head of State
and represents the unity of the Republic. The tenor of the speech was that the Government could not be carried on
in accordance with the provisions of the Constitution and he advanced his own
reasons and theory for the same which reasons and theory, in fact, are
unwarranted and miileading. The Prime Minister tried to cover up the failures
and defaults of the Government although he was repeatedly apprised of the real
reasons in this behalf, which he even accepted and agreed to rectify by
specific measures on urgent basis. Further, the Prime Minister’s speech is
tantamount to a call for agitation and in any case the speech and his conduct
amounts to subversion of the Constitution.
(c) Under the Constitution
the Federation and the Provinces are required to exercise their executive and
legislative authority as demaracated and defined and the re are specific
provisions and institutions to ensure its working in the interests of the
integrity, sovereignty, solidarity and well‑being of the Federation and
to protect the autonomy granted to the Provincqs by creating specific
Constitutional institutions consisting of Federal and Provincial
representatives, but the Government of the Federation has failed to uphold and
protect these, as required, in that, inter alia:
(i) The Council of Common
Interests under Article 153 which is responsible only to Parliament has not
discharged its Constitutional functions
to exercise its powers as required by Articles 153 and 154, and in relation to
Article 161, and particularly in the context of privatisatio n of industries in relation to item 5 of
Part II of the Federal Legislative List and item 34 ‘of the Concurrent
Legislative List.
The National Economic Council under Article 156,and its Executive
Committee, has been largely bypassed, inter alia, in the formulation of plans
in respect of financial, commercial, social and economic policies.
(iii) Constitutional powers,
rights and functions of the Provinces have been usurped, frustrated and
interfered with in violation of inter alia Article 97.
(d) Maladministration,
corruption and nepotism have reached such proportions in the Federal
Government, its various bodies, authorities and other corporations including
banks supervised and controlled by the Federal Government, the lack of
transparency ‘in the process of privatisation and in the disposal of public/Government
properties, that they violate the requirements of the Oath(s) of the public
representatives together with the Prime Minister, the Ministers and
Ministers of State prescribed in the Constitution and prevent the
Government from functioning in accordance with the provisions of the
Constitution.
(e) The functionaries,
authorities and agencies of the Government under the direction, control,
collaboration and patronage of the Prime Minister and Ministers have unleashed
a reign of terror against the opponents of the Government including political
and personal rivals/relatives, and mediamen, thus creating a situation wherein
the Government cannot be carried on in accordance with the provisions of the
Constitution and the law.
(f) In violation of the provisions
of the Constitution:‑‑‑
(i) The Cabinet has not
been taken into confidence or decided upon numerous
Ordinances and matters of policy.
(ii) Federal Ministers have
for a period even been called upon not to see the
President.
(iii) Resources and agencies
of the Government of the Federation, including statutory corporations,
authorities and banks, have been misused for political ends and purposes and
for personal gain.
(iv) T here has been massive
wastage and dissipation of public funds and assets at the cost of the national
exchequer without legal or valid justification resulting in increased deficit
financing and indebtedness, both domestic and international, and adversely
affecting the national interest including defence.
v) Articles 240 and 242
have been disregarded in respect of the Civil Services of Pakistan. ‑
(g) The Government of the
Federation for the above reasons, inter alia, is not in a position to meet
properly and positively the threat to the security and integrity of Pakistan
and the grave economic situation confronting the country, necessitating the
requirement of a fresh mandate from the people of Pakistan.
Now therefore 1, Ghulam Ishaq Khan, President of the Islamic Republic
of Pakistan in exercise of the powers conferred on me by clause (2)(b) of
Article 58 of the Constitution of the Islamic Republic of Pakistan and all
other powers enabling me, hereby dissolve the National Assembly with immediate
effect; and dismiss the Prime Minister and the Cabinet who shall cease to hold
office forthwith.”
The petitioner challenged this order by filing Constitution petition
under Article 184(3) of the Constitution directly in this Court. The petitioner
has claimed that fundamental right enshrined in Article 17 of the Constitution
has been violated. It has also been alleged that the impugned ‑order is
mala fide in law and fact, unlawful, arbitrary, mechanical, violative of the rules of natural justice and the
provisions of the Constitution. A large number of press, clippings have been
filed with the petition to justify the grievance, and the grounds stated in the
petition to challenge the validity of
the, order of dissolution. The respondents have also filed their counter‑alffidavit
and produced files containing more than a thousand pages to show that the
material for each and every ground stated in the order of dissolution was
available to the President, who had honestly, properly and in legal manner bona
fide formed an opinion that the Government cannot be run in accordance with the
Constitution and therefore the order of dissolution passed by the President is
valid and legal and cannot be questioned in this Court. The respondents also
raised a preliminary objection that the petition is not maintainable mainly on
the ground that no fundamental right of the petitioner has been violated. As
the petitioner has relied on Article 17 of the Constitution, it is reproduced
as follows:‑‑‑
“17.‑‑‑(l) Every citizen shall have the right to form
associations or unions, subject to any reasonable restrictions imposed by law
in the interest of sovereignty or integrity of Pakistan, public order or
morality.
(2) Every citizen, not being in the service of Pakistan, shall have the
right to. form or be a member of a political party, subject to any reasonable
restrictions imposed by law in the interest of the sovereignty or, integrity of
Pakistan and such law shall provide that where the Federal Government declares
that any political party has been formed or is operating in a manner
prejudicial to the sovereignty or integrity of Pakistan, the Federal Government
shall, within fifteen days of such declaration, refer the matter to the Supreme
Court whose decision on such reference shall be final.
(3) Every political party
shall account for , the source of its funds in
accordance with law.”
It will however be also convenient to reproduce below Article 184 by ‑virtue
of which the Supreme Court has been conferred jurisdiction to entertain
petitions directly involving enforcement of Fundamcntal:Rights:‑‑
184.‑‑‑(1) The Supreme Court shall, to the exclusion
of every other Court, have original jurisdiction in any dispute between any two
or more Governments.
EVIanation.‑In this
clause, “Governments” means the Federal Government and the Provincial Governments.
(2) In the exercise of the
jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratoty judgments only.
(3) Without prejudice’to
the provisions of Article 199, the Supreme Court shall, if it considers that a
question of public importance with reference to the enforcement of any of the
Fundamental Rights conferred by Chapter 1 of Part 11 is involved, have the
power to make an order of the nature mentioned in the said Article.
3. First, we may understand the nature of Article 184(3). This
provision confers power on the Supreme Court to consider questions of public
importance which are referable to the enforcement of any Fundamental Rights
guaranteed by the Constitution and enumerated in Chapter 1 of Part 11. This power
is without prejudice to the provisions of Article 199 which confer similar
power with certain restrictions on the High Court. The power conferred depends
upon two questions; one, that the case sought to be heard involves question of
public importance and two, the question of public importance relates to the
enforcement of Fundamental Rights. It is not every question of public
importance which can be entertained by this Court, but such question should
relate to the enforcement of Fundamental Rights. This provision confers a
further safety and security to the fundamental rights conferred and guaranteed
by the Constitution. This shows the importance which Fundamental Rights have in
the scheme of the Constitution. They cannot be curtailed or abridged and any provision
of law or action taken which violates Fundamental Rights conferred by the
Constitution shall be void. The nature of jurisdiction and the relief which can
‑be granted under this Article is much wider than Article 199. It confers
a power to make an order of the nature mentioned in Article 199. The word ‘nature’
is not ‘ restrictive in meaning but extends the 1A jurisdiction to pass an
order which may not be strictly in conformity with Article 199 but it may have
the same colour and the same scheme without any restrictions imposed under it.
Article 184 is an effective weapon provided to secure and guarantee the
fundamental rights. It can be exercised where the Fundamental Right exists and
a breach has been committed or is threatened. The attributes of Article 199 of
being an aggrieved person or of having an alternate remedy and depending upon
the facts and circumstances even laches cannot restrain the power or non‑suit
a petitioner from filing a petition under Article 184 and seeking relief under
it. The. relief being in the nature mentioned in Article 199 can be modified
and also consequential reliefs can be I granted which may ensure effective
protection and implementation o t e! ,Fundamental Rights. Even disputed
questions of facts which do not require voluminous evidence can be looked into
where Fundamental Right has been breached. However, in case where intricate
disputed questions of facts involving voluminous evidence are involved the
Court will desist from entering into such controversies. Primarily, the
questions involved are decided on admitted or prima facie established facts
which can be determined by filing affidavits. Evidence in support of
allegations can be taken orally in very exceptional cases where the breach is
of a very serious nature affecting large section of the country and is of great
general importance.
4. Mr. Aziz A. MunsK learned Attorney‑General, has contended that
a political party has no Fundamental Right to form a Government and further
that after the elections, if a person is elected to the assembly, all other
rights are governed by provisions of the Constitution and law framed to
regulate them. According to the learned Attorney‑General Fundamental
Right exists only to the extent a person or a political party participates in
the election and the following steps for formation of a with that ends
Fundamental Right 17 an Government are to be governed by Articles 52, 91, 92
and other provisions of law. Mr. S.M. Zafar, learned counsel for respondent
No.3 further contended that there is no Fundamental Right in the duration for
which an Assembly may function and no one has a right to continue and function
in the Government for a period of five years. According to the learned counsel
life of the National Assembly is not relatable to the Fundamental Rights. A
person is entitled to participate in the political process but prohibition of
participation in political process violates Fundamental Rights. According to
him life of National Assembly is a Constitutional mechanism. National Assembly
exists under the Constitution, not by virtue of Fundamental Rights. According
to him dissolution of National Assembly does not involve Fundamental Right of
any member, and it is not relatable to Fundamental Rights. He further contended
that the political activity with a view to get power is not for exercising such
a Fundamental Right. According to him political parties have bundle of rights
including political rights, fundamental rights, conventional rights and the
present case falls under the category of political rights and not the
fundamental rights. According to him whatever a political party has to do
before entering the National Assembly is called Fundamental Right, but the
moment election is over and it enters the Assembly, Fundamental Right ceases
and whatever is done in the Assembly is in exercise of political rights. Mr.
Khalid Anwar, learned counsel‑ for the petitioner contended that Article
17(2) recognises existence and operation of political parties. The Objectives
Resolution, paragraph 8, guarantees political justice which is missing in all
other Constitutions. According to the learned counsel it is a Fundamental Right
of every citizen or a political party to enter into political activity, form,
organise and operate in the Assembly and exercise its power according to law.
If any infringement of such rights occurs, it will amount to violation of
fundamental rights. In this regard all the, learned counsel have referred to
the judgments in Sycd Abul A’ala Moudoodi’s case P L D 1964 SC 673, Benazir
Bhutto’s case PLD 1988 SC 416 and Haji Saifullah’s case P L D 1989 SC 166. In
the first case it was observed that if a political party has been formed, it
has the right to exist subject to restrictions imposed by law. However, in the
judgment rendered in Benazir Bhutto’s case Article 17 with reference to the
parliamentary form of government has been extensively dilated and discussed
upon. It lays down that the right to form or to be a member of a political
party is not an absolute right, but is subject to reasonable restrictions
imposed by law ‘ in the interest of sovereignty or integrity of Pakistan.
Article 17 is a declaration of the right and the restriction in its exercise as
authorised by the Constitution. Thus, it is not an absolute or uncontrolled
liberty and is accordingly limited in order to be effectively processed. It was
observed that the restrictive clause is exhaustive and has to be strictly
construed. The significant observations which are directly attracted in the
case are: “The words ‘right to form’ in this sub‑Article are not only
confined to the commencement of association, but the right includes the right
of continuation of the association as well.” A fuller discussion is found at
page 531 which reads as follows:‑‑
“Reading Article 17(2) of the Constitution as a whole it not only
guarantees the right to form or be a member of a political party but also to
operate as a political party. As earlier held, the words ‘right to form’ are
not only confined to its formation but also to its function as a political
party. The political party, according to its texture, of being an aggregate of
citizens composing the party can exercise the other rights guaranteed under the
Constitution like an individual citizen. Again the forming of a political party
necessarily implies the carrying on of ‑all its activities as otherwise
the formation itself would be of no consequence. In other words the functioning
is implicit in the formation of the party. (See the opinions of B.Z. Kaikaus,
J. and Cornelius, C.H., in Abul A’la Maudoodi’s case). This being so, the
Political Parties Act not being a higher law than the Fundamental Right itself,
cannot override or prevail over or be superimposed to make the right
operational. The functioning is also explicit from the limitation itself which
makes prejudicial activities against sovereignty and integrity of Pakistan
actionable. This being so, I fail to
comprehend as to how the Political Parties Act which not being a higher
law than the Fundamental Right itself can override or prevail upon or be
superimposed to make the right operational. It is the guarantee of the right
itself which gives it the authority to exercise it. In formulating this
argument the learned Attorney‑General omitted to notice that the
Political Parties Act was enacted on 16th July, 1962, under Article 173 of the
1962 Constitution before the insertion of the Chapter relating to the
Fundamental Rights and there was no such
provision like Article 17(2) even when these Fundamental Rights were
incorporated in that Constitution. It was, therefore, that this Act provided
for the definition of political party, the constraints, the remedial provision
and the scope of the activities of a political party. Article 17(2) was .
inserted for the first time in the 1973 Constitution and came in its present
form by the Constitution (First Amendment)
Act, 1974. This sub‑Article now authorises the formation of a
political party , or any person to be its member and provides constraints to
control its activities. In this context, it cannot be argued that it is the ‑Political
Parties Act which makes the exercise of this right operational.”
The same view has been reiterated again in Haji Saifullah’s cast
The law is thus well‑settled that’Article 17(2) guarantees the right to form,
or to be a member of a political party and to operate as the formation and
operation of a political party are two such spheres which by a process of legal
path as provided. by the Constitution and law the party attains its goal inside
and outside the Assembly. The political functioning and activities of a
political party do not end once its members are elected to any Assembly. It has
multifarious activities within the Assembly and outside the Assembly. Election
is merely a process to choose its representatives bythe political sovereign,
i.e., the electorate to authorise them to continue their political activity
inside the Assembly. Election is merely a road leading a successful member to
enter the Assembly but it does not end there. The process continues
transforming into formation of the Ministry or becoming a Minister or to be a
leader of the Opposition or member of the Opposition Party, to participate in
the debates and discharge all such Constitutional and legal duties which are
enshrined in the Constitution, responsibility of which is cast on the members.
The elected members have far more responsibility than the members of the
political parties working outside the Assembly as an unelected representative.
The Minister is not only collectively responsible to the National Assembly, but
he is also accountable to the people. Thus, if the political right as conferred
by Article 17 is violated in breach of the provisions of the Constitution,
Article 184(3) can be invoked for violation of Fundamental Rights.
5. The infringement of Fundamental Rights can be in many ways. At times
even a law made by the legislature may offend a Fundamental Right and to that
extent it may be void, but in certain cases the law may not be void, but the
machinery adopted and the orders passed under it may be such which violate the
Fundamental Rights, they are thus challengeable. The same principle will apply
where the Constitution imposes any restriction on exercise of a Fundamental
Right and provides parameters and conditions for exercise of such power. Any
authority or person exceeding that jurisdiction passes an order which is not
within the framework of the restrictions imposed, then such order violates the
Fundamental Rights and can be scrutinised by this Court as provided by the
Constitution. Therefore, I do not agree with the learned Attorney‑General
that the order passed does not affect the right conferred under Article 17(2).
It is only to be seen that although the President of Pakistan is empowered to
pass an order for dissolution of National Assembly in certain given
circumstances, have they been observed without infringing the, Fundamental
Right.’ Because Fundamental Right can be restricted or controlled in terms of
the provisions of the Constitution and no authority can’ derive. power from any
other source to restrict, abridge, offend or violate Fundamental Right.
6. The question whether political justice as enshrined in the
Objectives Resolution after its being made a substantive part of the
Constitution can C provide rights equivalent to Fundamental Rights. In view of
the observations
made in Hakim Khan’s case PLD 1992 SC 595 Article 2A is not a supra‑ .Constitutional provision but it is a part of
the Constitution and, does not override
any other provision of the Constitution. The Objectives Resolution inter
alia provides as follows:‑
“Wherein shall be guaranteed fundamental rights including equality of
status, of opportunity and before law, social, economic and political justice
and freedom of thought, expression, belief, faith, worship ana association
subject to law and public morality.”
The Constitution recognises political justice and guarantees it. In
order to see that political justice is done, we have to examine the Fundamental
Rights 1C. which guarantee rights based on political justice. Mr. S.M. Zafar,
learned counsel has referred to Articles 9, 10 and 24 of the Constitution.
Article 24 relates to economic justice. According to John Rawls’ book “A Theory
of Justice” relied upon by Mr. S.M. Zafar, political justice is the justice of
the Constitution.... “First, the Constitution is to be just a procedure
satisfying the requirement of equal liberty, and second, it is to be framed so
that all the just arrangements which are feasible, it is more likely than any
other to result in a just and effective system of legislation.” It was further
observed:‑‑
“The principle of equal liberty, when applied to the political
procedure defined by the Constitution, I shall refer it to as the principle of
(equal participation).”
“It requires that all the citizens are to have an equal right to take
part and to determine the outcome of, the constitutional process that
establishes the laws with which they are to comply.” The learned author thus
concludes that “a Constitution democracy can be arranged so as to satisfy the
principle of participation”.. He further observes that “thus the most extensive
political liberty is established by a Constitution that uses the procedure so
called bare majority rule. (The procedure in which a minority can neither
override nor check a majority) for all significant political decisions
unimpeded by any Constitutional constraints”. Mr. S.M. Zafar also referred to “The
Foundations of Freedom” by Durward v. Sandifer and L. Ronald Scheman in which
the purpose and the object of democracy has been illustrated in the following
manner:‑‑
“Democracy, as we have defined it, is a complex interaction of forces,
all of which must be enabled to operate with reasonable freedom from arbitrary
restraint. To secure that freedom we consider that the citizens of a State must
be fully confident that the following rights will be operative: the right to
life, liberty, and security, under which are included freedom of movement, the
right to due process of law, freedom from arbitrary arrest, and the right, to
privacy‑, equal protection of the laws; the right to free assembly and
association; the right to peaceful petition; freedom of thought and expression;
the right to the protection of impartial Courts, which includes the right to a
fair trial, and freedom from ex post facto laws; and, finally, the right to an
education. Many might want to add to
this list; it is virtually impossible to subtract from it and leave any
meaning to the word democracy.
Life, liberty, and security need no explanation. They are the
fundamental precepts of any system of human rights. It is to secure them that ‘Governments
are instituted among men’. All universal declarations of human rights
incorporate them; all the American States recognize their essential nature and
guarantee their protection. The reports of the United Nations characterize life
as the ‘minimum human right” which ‘no Government has the right to deny
arbitrarily’. Immanuel Kant described liberty as the ‘one sole original inborn
right belonging to every man in virtue of his humanity. Security is not an
abstract concept, but refers directly to the principles of life and
liberty, and to the atmosphere of the society which engenders confidence in
their safe enjoyment. As Montesquieu affirmed, ‘Political liberty consists in
security, or at least in the opinion that we enjoy security.”
Article 21 of the Universal Declaration of Human Rights provides: “everyone
has the right to take part in the Government of his country directly or through
freely chosen representatives. From these observations it is clear that
democracy is a method of life which provides and paves way for achieving
political, economic and social rights which a human being is entitlted to and
almost all of them have been guaranteed‑ by the Constitution as
Fundamental Rights. The political right or political justice does not end with
the election to the Assemblies. It is an on‑going process which starts
with the formation of the political parties, participation in the elections and
thereafter to operate and participate in governance of the country by the
majority rule. How can in these circumstances be it contended successfully that
immediately after the election the political rights cease to exist. It is true
that such Fundamental Rights which emanate from Article 17(2) travel to the
Assemblies with the process of election and may be regulated by other
provisions of the Constitution, namely, Articles 50, 51, 52, 91 and 92, but it
will be a far cry to state that these provisions of the Constitution put an end
to the fundamental Rights which had started with the formation of political
parties. The learned Attorney‑General and Mr. S.M. Zafar have both
referred to Kh. Ahmad Tariq Rahim V. Federation of Pakistan PID 1991 Lah. 78 at
page 116 and relied on the observation that no vested right is conferred to
remain in office for three years and similar observation made in the Reference
by His Excellency the Governor‑General PLD 1955 Federal Court 435. This
observation of the Federal Court has been quoted in Haji Saifullah’s case at
page 290. However, it is to be noted that those observations of the
Federal.Court were made at a time when Fundamental Rights were not Conferred
and the Constitutional provisions as today did not exist. After the conferment
of Fundamental Rights as provided by Article 17(2) and also as envisaged in the
Objectives Resolution as quoted above, which gives a supporting foundation to
its interpretation and elucidation, it cannot be contended that the political
rights end on the doorsteps of the Assemblies.
7. In a democratic just order every citizen has right to equal
participation in the political process as required by the Constitution. Every
citizen without any discrimination within the frontiers of the Constitution can
profev% practise. exercise and operate his right to participate in the
governance of the country. He is entitled to form or join a ‑political
party, contest for an elective position and to hold and exercise authority of
politically elected office which by virtue oi such political process he is
entitled under the Constitution. If the objects of democracy have to be
achieved, if economic, social and political justice as enshrined in the
Constitution and proclaimed by a political democratic Government have to be
attained, then the parties and the members of the Assemblies have to play their
role inside the Assembly as well for governance of the country. So long they
are not disqualified by Constitution or by law to remain as a member of the
National Assemblytheir political right to operate in the Assembly cannot be
curtailed, abridged or violated. I am, therefore, of the confirmed view that
the petition under Article 184(3) is maintainable provided the petitioner is
able to show that the impugned order has transgressed, impinged and infracted
the Fundamental Rights of the petitioner or members of the Assembly or citizens
at large. .
8. This aspect brings us to the merits of the case. Before entering
into merits of the case it would be proper to first clearly understand the
import and meaning of Article 58(2)(b) under which power has been exercised to
strike down the National Assembly. This is not for the fist time that Article
58(2)(b) has come up for interpretation and application on the given facts and
circumstances. Earlier also it has found dw attention by the Supreme, Court in
many cases. Therefore, the meaning and import of Article 58(2)(b) is not
obscure; it is now crystal clear and the principles governing the exercise of
power under it are also well‑settled. The President is empowered to
dissolve I the National Assembly if he forms an opinion that the Government
cannot be run in accordance with the* Constitution. This power is not absolute
or unfettered. The President has first to form an opinion, an objective opinion
on the basis of the material before him to come to the conclusion that the
Government cannot be carried on in accordance with the Constitution. The
formation of opinion being objective in nature can be judicially examined and
reviewed by the Courts. While interpreting the Constitution one has to keep in
mind the nature of this seared document which is the supreme lax and the law of
the laws. While dealing with this aspect of the case in Khalid Malik’s case PLD
1991 Karachi 1, 1 had observed as follows:‑‑
“The Constitution is a living organism and has to be interpreted to
keep alive the traditions of the past blended in the happening of the present
and keeping an eye on the future. Constitution is the symbol of statehood
keeping united people of different races, diverse cultural, social, economic
and historical traditions. It provides a method of legitimacy to the
Government. It is the power behind the organs and institutions created by it.
Constitution must be interpreted keeping in view the entire canvass of national
fabric be it political, social, economic or religious.”
Herein I reproduce certain observations from the judgments of this
Court to illustrate the meaning of Article 58(2)(b):‑‑
Federation of Pakistan v. Haii Muhammad Saifullah Khan P L D 1989 SC 166:
“Thus, notwithstanding the addition of the words ‘and the validity of
anything done by the President in his discretion shall not be called in
question on any ground whatsoever’ after the words ‘Notwithstanding anything
contained in clause (1), the President shall ‘act in his discretion in respect
of any matter in respect of which he is empowered by the Constitution to do so’
in clause (2) of Article 48 of the Constitution, the provisions of Article
58(2), as finally adopted by the Parliament in the Constitution (Eighth
Amendment) Act, 1985, had the effect of placing some limits on the otherwise
absolute powers of the President. Article 48(3), which made the President the
sole judge of the validity of his discretion, was omitted. Article 58 was
simultaneously altered and besides providing for the non obstante clause, the
substantive part of clause (2) of Article 58 was also modified and the
substituted clause now provided that the National Assembly could be dissolved
only when a situation arose in which the Government of the Federation could not
be carried on in accordance with the Constitution and an appeal to the
electorate was necessary.
While explaining these changes on the floor of the National Assembly
the Prime Minister and the Justice Minister, as already noted, stated in
categorical terms that these changes, were intended to curtail the powers of
the President. He (the President), they explained, would still be vested with
the powers to diss9lve the National Assembly but this would be a limited power
exercisable only when the conditions set out in the amended clause were met.
Thus, the intention of the law‑makers, as evidenced from their
speeches and the terms in which the law was enacted, shows that any order of
dissolution by the President can be passed and an appeal to the electorate made
only when the machinery of the Government has broken down completely, its
authority eroded and the Government cannot be carried on in accordance with the
provisions of the Constitution:
True enough, it is within the discretion of the President to determine
whether these conditions are met or not but this discretion has to be exercised in terms of the words and spirit of
the Constitutional provision. ‘According
to his discretion’, as explained, relying on Maxwell,
in M. Abdul Majid v. The West Pakistan Province and 2 other’s PLD 1956 Lah. 615, means:
‘According to the rules of reason and justice, not private opinion
,according to law and not humour, it is to be not arbitrary, vague and
fanciful, but legal and regular, to be and for substantial reasons and must be
exercised within the limits to which an honest man competent in the discharge
of his office ought to confine himself i.e. within the limits and for the
objects intended by the Legislature.’
The discretion conferred by Article 58(2)(b) of the Constitution on the
President cannot, therefore, be regarded to be an absolute one,, but is to be ‑deemed
to be a qualified one, in the sense that it is circumscribed by the object of
the law that confers it.
It must further be noted that the reading of the provisions of Articles
48(2) and 58(2) shows that the President has to first form his opinion,
objectively and then, it is open to him to exercise his discretion one way or
the other, i.e. either to dissolve the Assembly or to decline to dissolve it .
Even if some immunity envisaged by Article 48( 2) is available to the action
taken under Article 58(2) that can possibly be only in relation to the exercise
of his ‘discretion’ but not in relation to his ‘opinion’. An obligation is cast
on the President by the aforesaid Constitutional provision that before
exercising his discretion he has to form his ‘opinion’ that a situation of the
kind envisaged in Article 58(2)(b) has arisen which necessitates the grave step
of dissolving the National Assembly!
Thus, though the President can make his own assessment of the situation
as to the course of action to be followed but his opinion must be founded on
some material. In the present case the President himself chose to state the
grounds on which he was basing his action As the grounds have been disclosed
their validity can be examined.”
While referring to Article 58(2)(b) Shafiur Rahman, J. observed:‑‑
“There is no express ouster clause in the Constitution with regard to
the exercise of this power by the President. Whatever ouster could be implied
by the use of the expression ‘in his discretion’ and ‘in his opinion’ stands
removed by the use of non obstante clause ‘notwithstanding’, thereby excluding
the application of ouster clause contained in Article 48(2) excluding Courts’
jurisdiction generally where the powers reserved for the President to be
exercised in his discretion are concerned. Additionally the existence of
jurisdictional facts capable of judicial ascertainment and adjudication was
made a precondition for the exercise of this power. Not to test the exercise of
this power by reference to these constitutionally prescribed jurisdictional
facts namely‑
(i) a situation has arisen
in which the Government of the Federation cannot be carried on in accordance
with the provisions of the Constitution; and
(ii) an appeal to the
electorate is necessary,
would in fact amount to a failure to discharge a I duty ordained by the
Constitution itself.
The expression ‘cannot be carried on’ sandwiched as it is between ‘Federal
Government’ and ‘in accordance with the provisions of the Constitution’,
acquires a very potent, a very positive and a very concrete content. Nothing
has been left to surmises, likes or dislikes, opinion or view. It does not
concern itself with the pace of the progress, the shade of the quality or the
degree of the performance or the quantum of the achievement, It concerns itself
with the breakdown of the Constitutional mechanism,.a stalemate, a deadlock in
ensuring the observance of the provisions of the Constitution. The historical
perspective in which such a provision found a place in our Constitution
reinforces this interpretation.”
In Khawaja Ahmad Tariq Rahim’s case P L D 1992 SC 646 Shafiur Rahman,
i., after recounting historical background and referring to the dissolution of
the House of Commons by the King, the dismissal of the Ministry by the Governor‑General
of Australia and power of the President of India to dismiss the Prime Minister
even if he commanded the majority, observed as follows:‑‑
“The specific power,. the jurisdictional requirement all being provided
in our Constitution, it is not necessary to either go back deep into history or
to infer a residual but necessary power of the President in the matter.
In Haji Muhammad Saifullah Khan’s case P L D 1989 SC 166 our
Constitutional provision has received full attention and its meaning and scope
authoritatively explained and determined. It is an extreme power to be
exercised where there is an actual or imminent breakdown of the Constitutional
machinery, as distinguished from a failure to observe a particular provision of
the Constitution. There may be occasion for the exercise of this power where
there takes place extensive, continued and pervasive failure to observe not one
but numerous provisions of the Constitution, creating the impression that the
country is governed not so much by the Constitution but by methods extra‑Constitutional.”
9. In interpreting Article 58(2)(b) the Constitutional background is to
be taken into, consideration. The
Constitution envisages parliamentary form Of Government. Therefore, if any
provision has been inserted in the Constitution afterwards infringing, or
impinging on the democratic and parliamentary system, it is to be construed in
a manner that spirit and form of parliamentary system is not distorted. The sum
and substance of the authorities is that
the conditions as laid down in Article 58(2)(b) should be strictly
construed. Article 58(2)(b) conferring a power to dissolve the National
Assembly in certain circumstances cannot be given a liberal or wide meaning. It
has to be given a restricted meaning in the facts and circumstances of the
case. At this stage I may also refer to the arguments of the learned counsel
for the respondents whereby they have sought to support and justify the
dissolution by referring to the conventions and the prerogatives of the King in
the United Kingdom and also certain judgments of the Indian Supreme Court and
High Courts where the State Ministries and Houses were dissolved and dismissed.
I agree with the observation of my learned brother Shaflur Rahman, J. that in
the presence of clear and specific provisions in our Constitution, conventions
and prerogatives of the United Kingdom can be of no avail and cannot be applied
in this country. So far the Indian judgments are concerned, they have been
dealt with by my learned brother and I need not again repeat the same. The
observations of this Court in several cases and also the observations of the
High Court as confirmed by this Court are large and many in number to give
guidance, support and to solve the controversy between the parties. The
observations have been so exhaustive, so complete in all sense that we perhaps
need not look beyond our frontiers.
10. The dissolution order is based on several reasons, amongst which
the first it the mass resignation of the members of the Opposition and of a considerable number from the Treasury
Benches including Ministers, inter alia, showing a desire to seek fresh mandate
from the people have resulted in the Government of the Federation and the National Assembly losing confidence of
the people and that the dissension therein has nullified its mandate. It seems
that the resignations given by several members of the National Assembly
belonging to Opposition and Treasury Benches and also the Ministers led the
President to form an opinion that due to dissensions and resignations the
National Assembly has lost the confidence
of the people and has nullified its mandate. The learned counsel for the petitioner has contended that
the resignations relied upon which have been filed alongwith written statement
of respondent No.1, are not a resignation in law. This brings us to consider
the nature of the resignation ‑letters. The striking feature is that none
of the resignation has been submitt to the Speaker. They are mostly addressed
to the Speaker, but were delivered directly or through some other members to
the President. According to Mr. Khalid Anwar unless the procedure and law
governing and regulating the resignation are complied with it shall not be
treated as a resignation. According to the learned AttorneyGeneral the
resignations were relied upon for the purpose of forming an opinion by the
President, but the reasons given for resigning should be explained by its
author. Accordi ng to the learned Attorney‑Genera resignations were
voluntary act of the members and were delivered not for the purpose of causing
vacancy, but to protest against the Prime Minister and the Cabinet and also to
show lack of confidence. Mr. S.M. War, however, put it that the resignations
were in protest. According to the Attorney‑General 88 resignations were
delivered to the President out of which 41 resignations delivered by Mrs.
Benazir Bhutto were from the members of PDA while 47 resignations belonged to
members of the Government party. Twelve resignations were tendered earlier in
June, 1992 by the Members of MOM and one seat was declared vacant due to death
of Muhammad Khan Junejo. Thus, in all there was a vacancy of only 101 members
out of which only 88 had resigned according to the respondents in protest and
to show their lack of confidence in the Prime Minister. The stand taken by
respondent No.1 is that the resignations were submitted by the members showing
their protest and lack of confidence in the petitioner’s Government, National
Asgembly and the Speaker. The reason for submitting the resignations to the
President though addressed to the Speaker was that they had no confidence in
the Speaker who according to the general perception was in collusion with the
former Prime Minister and was not acting independently. It was alleged that the
Speakei was getting preferential and special treatment in allocation of funds
for his constituency. As the‑ Speaker’s conduct was objectionable and
open to question, the concerned M.N.As. sent their resignations to the
President so that their protest and expression of lack of confidence be
properly registered. It was further stated that on the basis of these
resignations the President could form his opinion in that behalf. However, this
stand seems to have been modified by the learned Attorney‑General when in
the midst of arguments he submitted a. written explanation. The stand now taken
is that “the resignations were meant to be resignations as well as the protests”.
The tender and acceptance of resignation, the mode in which it is to be given
and accepted have been provided by Article 64 of the Constitution and Rule 25
of the Rules of Procedure and Conduct of Business in the National Assembly
which read as follows:‑‑
“Article 64.‑‑‑(l) A member of Majlis‑e‑Shoora
(Parliament) may, by writing under his hand addressed to the Speaker or, as the
case may be, the Chairman resign his seat’, and thereupon his seat shall become
vacant.
(2) A House may declare the
seat of a member vacant if, without leave of the
House, he remains absent for forty consecutive days of its sittings.
Rule 25. Resignation of seat.‑‑‑ (1) A member
may, by writing under his hand addressed to the Speaker, resign his seat.
(2) If, ‑‑
(a) a member hands over the letter of resignation to the Speaker
personally and informs him that the resignation is voluntary and genuine and
the Speaker has no information or knowledge to the contrary; or
(b) the Speaker receives
the letter of resignation by any other means and he, after such inquiry as he
thinks fit, either himself or through the National Assembly Secretariat or
through any other agency, is satisfied that the resignation is voluntary and
genuine, the Speaker shall inform the Assembly of the resignation:
Provided that if a member resigns his seat, when the Assembly is not in
session, the Speaker shall direct that intimation of his resignation specifying
the date of resignation be given to every member immediately.
The Secretary‑General shall, after the Speaker statisfies himself
that the letter of resignation is voluntary and genuine, cause to be published
in the Gazette a notification to the effect that the member has resigned his
seat and forward a copy of the notification to the Chief Election Commissioner
for taking steps to fill the vacancy thus caused.
(4) The date of resignation
of a member shall be the date specified in writing by which he has resigned or
if no date is specified therein the date of receipt of such writing by the
Speaker.
(iii) If the letter of
resignation is delivered personally, then the Member should inform the Speaker
that the resignation is voluntary and genuine.
(iv) If the resignation is
delivered by any other means, then the Speaker shall make inquiry into the
genuineness of the resignation and ascertain whether it is voluntary or not.
11. From these provisions the procedure for submitting a resignation by
a member of the National Assembly emerges as follows:‑‑
(i) The
resignation should be in writing under his hand and should be addressed to the Speaker.
(ii) The
resignation may be delivered by the member personally or through any other means.
I(v) The Speaker
after satisfaction that the resignation is genuine and voluntary, shall inform
the National Assembly and then the seat shall be declared vacant.
(vi) The date of resignation
of a member shall be the same as specified the letter of resignation or if no
date has been ‘given, then the date of receipt by the Speaker.
It is an admitted fact that majority of the resignations were obtained
by some persons of authority and power in political life and delivered to the
President. Some may have been directly delivered to the President. The
resignations mostly do not carry any date. They give different reasons, most of
them give their own personal reasons. Some of them have shown and expressed
their dissatisfaction with the Government policy. Mr. Khalid Anwar has pointed
out that few hours before the order of dissolution was passed by the President
Mrs. Benazir Bhutto had met him and delivered resignation letters of 41 members
belonging to PDA. According to the learned counsel, they were collected by the
leaders of the parties beforehand, some of them much earlier for the purpose of
keeping control over them and to utilise them whenever required by such
leaders. It has come to light that there is an on‑going practice among
the political parties to obtain resignation of the members. In the absence of
any effective and proper law for controlling horse‑trading and floor‑crossing,
the political parties have adopted a method of controlling them by obtaining
resignation from each member which may be utilised at their own convenience. It
may be a step to bring discipline among the members but in most cases it may be
4 tool of blackmailing and also to punish such members who differ or revolt
against the policies and discipline of the party. To that extent there may be
some disciplinary justification for obtaining and holding such resignation, but
in order to make it valid and effective besides complying with the procedure
laid down, it should be voluntary, genuine and should be intended to vacate the
seat. Resignation is a voluntary act of a member or person submitted with the
intention to relinquish, relieve or quit that particular post or position and
to vacate the same. It cannot be a two‑way traffic or an act to use it
for any purpose liked by any third person. The resignations obtained by any
person politically or officially in authority or not from the members and
delivery to a third party other than the person authorised to receive them,
with the intention to achieve political gains and create a ground for
dissolution of the Assembly can neither form basis for such action nor be
justified by any principle of law, morality and ethics.
I
12. The learned counsel for the petitioner has referred to various
press clippings filed with the petition to show that there was an organised
campaign to obtain resignations with the intention to destabilise the
Government. At the moment we are not considering the press clippings, which in
certain circumstances sometimes exaggerate the situation or describe it according
to their own assumptions and inferences. However, the admitted position in this
regard is that the resignations were obtained and hardly any resignation was
submitted to the Speaker by the members. Those who personally submitted to the
President are few in number. In this regard reference can be made to A.K.
Fazlul Quader Chaudhry v. Syed Shah Nawaz and 2 othes P L D 1966 SC 105 where
it was held that the resignations should not only be addressed to the Speaker,
but they should be intended to be delivered to the Speaker. In Mirza Tahir Beg
v. Syed Kausar Ali Shah P L D 1976 SC 504 while describing the high office of
distinction a Speaker holds in the Assembly, it was held that the Constitution
has ordained that the resignation by a member.is effective onlvl when it is “addressed”
to the Speaker: it was not intended to be an idle
formality. To relinquish the parliamentary seat by resignation is a
grave and a N solemn act”. The letter of resignation should be signed by the
member voluntarily and submitted personally to the Speaker or transmitted
through duly authorised person for delivery to the Speaker. In A.K. Fazlul
Quader Chaudhry’s case the resignation of Shah Nawaz was rendered ineffective
as it was transmitted by the President to the Speaker without any authority
from him (Shah Nawaz). The Constitution has thus cast onerous duty on the,
Speaker to make inquiry into the genuineness and voluntary nature of the”
resignation and also that it has come through an authorised person, if not
submitted personally. The Speaker can neither refuse to discharge this duty nor
can any authority bypass him. The solemnity and sanctity attached to the
resignation by a member of the National Assembly shall be eroded if it is made
in contravention of the provisions of the Constitution and the rules and
furthermore if they are intended not to vacate the seat, but for any other
purpose, ulterior, oblivious or clandestine. Such letters of resignation which
do not have any validity or sanction under law can hardly be accepted muchless
by a person of high position like the President to assess the confidence the
members have in the Assembly and also to assess a situation whether the
Government can be run in accordance with the Constitution. Even after tendering
resignations of 88 persons the majority members were still in the Assembly.
Reference has been made to a decision of the Privy Council in Adegbenro v.
Akintola and another (1963) a All ER 544. It has some similarity on facts, but
is completely distinguishable. In this case the Governor received a letter
dated 21‑5‑1962 signed by 66 members of the House of Assembly in
which it was stated that they no longer supported the Premier. There were 124
members in the Assembly and the Governor on the receipt of this letter removed
the Premier as he did not command the support of the majority of the members of
the House of Assembly. The respondent challenged the action of the Governor but
with the consent of the parties the Chief Justice of Western Region referred
the following two issues to the Federal Supreme Court:‑‑
“(I) Can the Governor validly
exercise power to remove the Premier from office under section 33(10) of the
Constitution of Western Nigeria without prior decision or resolution on the
floor of the House of Assembly showing that the Premier no longer commands the
support of a majority of the House?
Can the Governor validly exercise power to remove the Premier from
officer under section 33’10) of the Constitution of Western Nigeria on the
basis of any materials or information extraneous to the proceedings of the
House of Assembly?”
The Court answered the first question in favour of the respondent and
did not find it necessary to answer the second question. The appellant with the
leave of the Supreme Court ‑filed appeal before the Privy Council which set aside the impugned judgment. The
controversy revolved round the interpretation of section 33(10) which provided
that the Ministers of the Government of the Region shall “hold office during
the Governor’s pleasure: Provided that the Governor shall not remove the
Premier from office unless it appears to him that the Premier no longer
commands the support of majority of the members of the House of Assembly.” (Emphasis
supplied). The respondent’s contention *was that ‘the Governor cannot
Constitutionally take account of anything in matter of ‘support’ except the
record of votes actually given at the floor of the House’. Repelling this
contention it was observed:‑‑
“The difficulty of limiting the statutory power of the Governor in this
way is that the limitation is not to be found in the words in which the makers
of the Constitution have decided. to record their description of his powers. By
the words they have employed in their formulae, ‘it appears to him’, the
judgment as to the support enjoyed by a Premier is left to the Governor’s own
assessment, and there is no limitation as to the material on which he is to
base his judgment or the contacts to which he may resort for the purpose. There
would have been no difficulty at all in so limiting him, if it had been
intended to do so. For instance, he might have been given power to act only
after the passing of a resolution, of the House ‘that it has no confidence in
the Government of the Region’, the very phrase employed in an adjoining section
of the Constitution (see ‘section 31(4), proviso (b)) to delimit the Governor’s
power of dissolving the House even without the Premier’s advice. According to
any ordinary rule of construction weight must be given to the fact that the
Governor’s power of removal is not limited in such precise terms as would
confine his judgment to the actual proceedings of the House, unless there are
compulsive reasons, to be found in the context of the Constitution or to be
deduced from obvious general principles, that would impose the more limited
meaning for which the respondent contends.
To sum up, there are many good arguments to discourage a Governor from
exercising his power of removal except on indisputable evidence of actual
voting in the House, but it is nonetheless impossible to say that situations
cannot arise in which these arguments are outweighed by considerations which
afford to the Governor the evidence he is to look for, even without the
testimony of recorded votes.”
13. The Constitutional dispensation did not limit the power of the
Governor to remove the Premier only after ascertaining the opinion of the
majority on the floor of the House. The decision has turned on the
interpretation of section 33(10), but the Constitutional Principles enunciated
support the petitioner’s contention. In our Constitution Article 91(5) governs
such a situation which reads as follows:‑‑
,,91._‑‑(5) The Prime Minister shall hold office during the
pleasure of the President, but the President shall not exercise his powers
under this clause unless he is satisfied that the Prime Minister does not
command the confidence of the majority of the members of the National Assembly,
in which case he shall summon the National Assembly and require the Prime
Minister to obtain ‘a vote of confidence from the Assembly.”
The exercise of pleasure by the President is conditional and not
absolute. An embargo has been imposed on its exercise and the President is
precluded from forming his opinion and satisfaction on the basis of anything but
the votes given on the floor of the House. As our Constitution contains
specific provisions for governing such a situation, and provides a procedure
and manner for ascertaining the fact whether the Prime Minister has lost
confidence of the House, no other mode of ascertainment can be adopted. It is a
well‑settled principle that if a statute provides anything to be done in
a particular manner, no deviation from the given course is permissible. Any
ascertainment of such fact in an unconstitutional manner or extraneous
consideration cannot be made basis for removing the Prime Minister. It is thus
clear that most of the resignations collected and delivered to the President
could not be made basis for reaching the conclusion or satisfying himself that
the petitioner did not command confidence of the majority of the. National
Assembly. The only course open for the President is to summon the National
Assembly and require the Prime Minister to obtain the vote of confidence from
the Assembly. The determination of such fact is not left to the President or
any authority except the National Assembly. Such resignations could hardly be
made a ground for dissolving the National Assembly.
14. It would be appropriate to mention that respondent No.1 has pleaded
that the resignations were not delivered to the Speaker as he was not impartial
and had obtained favour from the petitioner inasmuch as funds many times higher
than given to any other member were allocated for development of his
constituency and further that the reference riled by Salman Taaseeer against
the petitioner has not been forwarded to the Chief Election Commissioner. The
members submitting their resignations had never intended to vacate the seats
therefore they could have hardly thought of
approaching the Speaker. As resignations were not intended to be
resignation in law by the members, it is
not necessary to dilate on the excuse offered by them. It may however be
pointed out that Speaker enjoys a unique position in the Constitutional
structure of the country. He has to preside over the House and is required to
maintain decorum and discipline. He should be impartial, just and disinterested
and discharge his duties without fear or favour, ill‑will or affection.
His most important duty is to maintain discipline amongst the members of the
Assembly in the House and also control their conduct and utterances even
outside the House made in violation of the Constitution. In this regard
reference can be made to Article 63 of the Constitution which provides disqualification
for membership of the Majlis‑e‑Shoora. It enumerates several
conditions when a person shall be disqualified from being elected or chosen and
from being a member of the Parliament. It not only specifies the disqualifications attaching before the elections,
but even the disqualifications i which may occur or may be carried unnoticed
after the election to the House. Once such disqualifications or misconduct as
enumerated therein are noticed and a question arises whether he has become
disqualified from being a member, the Speaker shall refer the question to the
Chief Election Commissioner and if he declares him to be disqualified, he shall
cease to be a member and his seat shall become vacant. Therefore, heavy
responsibility has been cast on the Speaker to be watchful and to maintain
discipline with strict observance of the provisions of the Constitution.
Pointed reference can be made to Article 63(i)(g) which though in existence has
never found its importance by any authority or the Speaker concerned. Under sub‑clause
(2) of Article 63 the Speaker should not wait for the question to be raised,
but once it is brought to his notice or he suo motu notices any breach of anyl’
provision of Article 63, it is his duty to refer the matter to the Chief
Election Commissioner. The word ‘shall’ in Article 63(5) indicates that a
mandatory duty has been cast on the Speaker to refer the question to the
Election Commissioner. If any breach has been brought to his notice, it is not
for him to decide it, but he is merely to refer it to the Chief Election
Commissioner. Any unreasonable delay in sending such matter to the Chief
Election Commissioner is bound to cloud the high status of the Speaker.
15. The next ground for dissolution of the National Assembly is the
speech of the Prime Minister Nawaz Sharif made on 17‑4‑1993 on TV
and Radio. It has been stated in the order that during March and April and
lastly on 14‑4‑1993 when the President urged the Prime Minister
Nawaz Sharif to take positive steps to resolve the grave internal and
international problems confronting the country and the nation was looking
anxiously forward to the announcement of concrete measures by the Government to
meet the situation, the Prime Minister made a speech on 17‑4‑1993
to divert the people’s attention by making false and fictitious allegations
against the President. The tenor of speech was such that the Government could
not be carried on in accordance with the provisions of the Constitution.
According to the order, the Prime Minister tried to divert the attention of the
public and made false accusations and allegations against the President which
amounted to “calling for agitation” and that in any case the speech and his
conduct amounted to “subversion of the Constitution”. According to the learned
counsel for the petitioner the speech was made in an explosive background
created by the President and the politicians who were visiting the President
House in an attempt to destabilise the Government. According to the learned
counsel till 14‑4‑1993 there was no complaint and grievance and no
ground existed for dissolution but after the meeting held on 14‑4‑1993
a press‑note was issued by the President House, which was not the agreed
one and the draft provided by the petitioner was not accepted. The period of
three days could not be sufficient to take remedial steps or to satisfy the
public as alleged by the dissolution order and before taking any step, the
National Assembly was to be taken into confidence, which was summoned on a
requisition dated 18‑4‑19,93 for 19‑4‑1993, but the
Assembly was dissolved. According to the learned counsel the speech was an
expression of regret and frustration and the petitioner had adopted a policy of
silence and patience which was taken as cowardice and, therefore, the speech
was made. It was a speech for conciliation between the two pillars of the State
and not a rebellion or subversion of the Constitution. According to the learned
Attorney‑General the salient point of the speech was that the very office
which should have been the custodian of the Constitution was being used for
disintergration. The high office which is supposed to be the symbol of Pakistan’s
integrity is used by those who are out on the loose to destroy its institution.
Mr. Nawaz Sharif stated that he was always taught to respect elders, but
unfortunately it was considered his weakness. They have tried to impose
compromises on him though he was an elected Prime Minister. There was worst
kind of horse‑trading ever since in the history of this country in order
to throw him out of the office. He was asked from the office of that supposedly
respected place not to put in trouble Sardar Asif Ahmad Ali as he had ordered
for his arrest himself. It was stated in the speech that his brother Shahbaz
Sharif was attempted to be bribed by offering the Premiership and, therefore,
he had decided to come to the people of the country. It was also stated that
Governor of a Province was also involved in the conspiracy against the mandated
Constitutional Government while sitting in Islamabad in the corridors of Aiwan‑e‑Sadar.
The uncer tainty which has been triggered by the political orphans and their
patrons from Aiwan‑e‑Sadar has taken the whole of the economy in
its grip and caused heavy loss to the national economy. These parts of the
speech of the Prime Minister were particularly referred by the learned Attorney‑General
to show that in the existing circumstances the suspicion and the strained
relations which have been expressed by the petitioner, there cannot be any
reconciliation between them and they cannot work in harmony and thus the
Government cannot be run in accordance with the provisions of the Constitution.
The learned Attorney‑General by referring to these portions of the speech
contended that the tone, tenor and conduct of the speech amounts to violation of oath of office by the Prime
Minister inasmuch as the office of President was publicly attacked and
ridiculed. The institution of protector and defender of the Constitution was
reduced to a nullity in violation of law by the Prime Minister; and defamation*
and subsequent repeated statement of physical intimidation and threat were also
in contravention of law. It was further contended that the speech not only
amounted to destroy the institution of Presidency and Prime Minister because it
contained charges of conspiracy, intimidation and blackmailing by the President
but rendered the State machinery to a standstill. There was a structural
breakdown of the two pillars of the State and, therefore, these facts have
direct nexus with the dissolution of the National Assembly.
16. Both the parties ‘
have filed a large number of press clippings and respondent No.1 has also riled
voluminous files containing documents relating to these charges and also the
letters which the President had been writing to the Prime Minister from time to
time. The speech of the Prime Minister has a background. In fact the entire
episode has a background which started early from the month of March. It seems
correct that after the address of the President in the Parliament in December,
1992 there seemed to be no doubt that the relationship of both the parties was
cordial. The President had praised
the policies of the Prime Minister. The legislative, economic and other
progress in the field were shown to be satisfactory. Although some scepticism
was shown in the field of privatisation, yet it was not an offensive one, but
in the line of giving guidance or counsel which a President is entitled to give
to the Prime Minister and the Cabinet. The month of March had become a hot b.A
of rumo6rs and as the learned counsel for the petitioner has put it, of
conspiracies, horse‑trading and blackmailing. The persons visiting the
President had been making speeches and statements giving the impression that
they were making all atttempts under the umbrella of the President House to
destabilise the Government of the petitioner. The collection of resignations
from the members of the National Assembly by few persons and presenting the
same to the President was a link in the entire episode. It seems that the Prime
Minister had met the President and had offered for conciliation and thereafter
a meeting was held on 14‑4‑1993 in respect of which the following
press note was issued by the President House:‑‑
“The Prime Minister called on the President and they reviewed the grave
and pressing national and international problems facing the country. The
meeting lasted for about two hours.
The President urged the Prime Minister to undertake positive steps as
early as possible to address effectively these problems to the satisfaction of
the public representatives and the people. The Prime Minister undertook to do
so on an urgent basis and to revert to the President with precise measures in
this behalf.”
According to the petitioner, this press note did not reflect consensus
nor the agreement which had been reached in the meeting between the President
and the Prime Minister. In that regard reference has been made to a draft
memorandum prepared by Prime Minister Secretariat and taken by Mr. Illahi
Bakhsh‑Soomro and Lt.‑Gen. (Rtd.)
Abdul Majeed Malik to the President, which reads as follows:‑‑
“The Prime Minister, Mr. Muhammad
Nawaz Sharif today called on the President, Mr. Ghulam Ishaq Khan at the Aiwan‑e‑Sadar. During the two‑hour
meeting, the President and the Prime
Minister went into the causes of the prevalent political situation in the country and it was agreed that
necessary measures would be taken to defuse it.
Referring to speculations, discussions and debate on the 8th Amendment, the Prime Minister informed the President
that the issue was well behind us. He said the recent statement of three
Federal Ministers in this behalf fully reflected his own views.
Discussing the various policies and programmes of the Government, the
Prime Minister said he valued the President’s guidance and counsel and looked
forward to his continued advice at various stages of their formulation and
implementation. It was agreed to bring about improvements in the functioning of
the Government, wherever necessary.
It was also agreed that such meetings and consultations will be held
more frequently to ward off speculations and avoid misunderstandings.
The two agreed that efforts should be made to win back friends and
colleagues who have left the Cabinet as a result of misunderstandings and
differences. They hoped that most of them will be back before long.
Federal Ministers, Lt.‑Gen. (Rtd.) Abdul Majid Malik and Mr.
Illahi Bakhsh Soomro joined the President and the Prime Minister at a later
stage of the meeting.”
This document has been riled by the learned Attorney‑General who
has relied on it. In this connection, there are two more letters which require
attention to understand the purpose and meaning behind the press note and the
draft proposed by the Prime Minister. On 12‑4‑1993 the President’s
Secretariat issued a letter to the Prime Minister’s Secretariat referrip.g to
the press clippings of the same date regarding serious allegations levelled by
Begum Nuzhat Nawaz widow of late General Asif Nawa7_ While requiring the Prime
Minister to appoint a judicial commission it was further stated that “in the
meantime immediate necessary measures may have to be taken in respect of the
two persons named by the lady as regards the functions of their office”. This
letter is at page 614 of file 3‑A. This letter was replied by the Prime
Minister’s Secretariat on 13‑4‑1993 informing that before the
receipt of the letter the inquiry commission had been appointed. It further
stated that the Government will take prompt
action against the persons if so named by the commission in accordance with
law. A reply was sent from the President’s Secretariat on 15‑4‑1993,
which reads as follows:‑‑
“Subject: Appointmert of judicial commission
Kindly refer to P.M. Seat. u.o. No.8ffl/JS(LAW)/93, dated 13th April,
1993.
(2) Our communication of
12th April was in fact delivered on a most immediate basis by a special
messenger and received at 17‑50 hours as per attachment. In any case, the
matter was mentioned that morning by the President to Mr. Shahbaz Sharif, MNA.
(3) Important, however, is
what is stated in para. 2 of your letter. We are indeed surprised that you
should say’it is not clear as to what action is envisaged’when this should be
routine at the time of any investigation let alone when grave and serious
allegations are made by the widow of a very respected COAS against a senior
officer controlling the facts. The President repeated this to the Prime
Minister yesterday.”
These letters indicate that on 14‑4‑1993 the President and
Prime Minister did meet. It can be inferred that in the meeting between the
President and the Prime Minister besides other problems action to be taken
against two persons named by the widow of Gen. Asif Nawaz must have been
subject‑matter of the discussion. According to the learned Attorney‑General
as the press note shows the Prime Minister had undertaken to take positive
steps to the satisfaction of public representatives and the people and then
revert to the President with precise measures, but instead of taking such steps
as promised by him, he straightaway went to the electronic media and rendered
speech derogatory, defamatory and hostile to the President. According to Mr.
Khalid Anwar the press release was without the consensus of the Prime Minister
and in fact the proposed press release prepared by the Prime Minister’s
Scretariat which was not issued reflected true consensus and was intended to
ward off speculation and avoid misunderstanding. According to the learned
counsel even on the basis of the press release issued, the Prime Minister was
required to satisfy the public representatives i.e. the members of the National
Assembly and the people and accordingly he made a speech to address the people
and on requisition a meeting of the National Assembly was summoned by the
Speaker for 19‑5‑1993, but the said meeting in which the Prime
Minister would have satisfied the public representatives about the problems
facing the country was not allowed to be convened. Be that as it may, the fact
remains that the Prime Minister was required to do some act and take some
action against the two persons mentioned in the letter referred to above.
Obviously. it seems that as desired by the President’s Secretariat, those two
persons were to be transferred, removed, sacked or suspended. Perhaps the Prime
Minister did not see eye to eye on that issue as is obvious from the letter
issued in reply to the President’s Secretariat’s letter. This became the
culminating point and the immediate cause for rushing to the electronic media
and also summoning the National Assembly on requisition of the partymen of the
Prime Minister. These acts seem to accelerate the explosive situation already
simmering in the political arena of the country. The speech and summoning of the
National Assembly, bona ride of which was doubted, became an immediate cause
for issuing the dissolution order.
17. In this background and the scenario one is led to think whether it
is normal and usual that press release is issued by the President’s Secretariat
in respect of meetings held with the Prime Minister. If it is a practice, then
in the past no such press release had been issued and included in the paper
book which runs into more than thousand pages. But if this was not the practice
to issue the press release which has not been clarified by anyone, then it
becomes enigmatic why the press release had been issued? Was it intended to
warn the Prime Minister, or to just inform the public that tension between the
two high officials is sought to be reconciled? During this period the news
media was rife with speculations, analysis of the news and some of them had
indulged in sensationalism as well. However, the events following these
incidents proved that their speculation was not incorrect. It is true that in
his speech the Prime Minister had used strong language against the President
and made certain allegations which he endeavoured to justify with reference to
the events, incidents and the news published in the press media. Likewise the
speech made by the President after the
dissolution of the National Assembly also reflects the sentiments and the
harsh language used though in a guarded manner against the petitioner. The
speech, its tenor, language and the conduct in making it is relevant only from
Constitutional point of view to determine, whether after making such a speech
there may be a complete stalemate and deadlock in the relationship between the
Prime Minister and the President and due
to this deadlock the Government cannot be run in accordance with the
provisions of the Constitution. The learned Attorney‑General has
vehemently stressed that in the face of this speech and derogatory words used
against the President which amount to calling for agitation and subvesion of
the Constitution leaves no room for cooperation between the two and the
stalemate and deadlock will be so great that the Constitutional machinery will
break down. In fact, according to him, it has broken down. The speech was more
on a personal level and political in nature to save himself from ‘an impending
danger of which the petitioner was apprehensive and in respect of which big
rumours were in the air. Rumours were so great and coherent that they had
assumed the proportion of truth. The misunderstanding was so great and the
tension between the parties was so high that they looked at each other with
jaundiced eye and coloured glasses. But this atmosphere of suspicion was not of
such a nature that it could not be ironed out and was not humanly possible to
clear the differences. The high offices require high standards, high status,
high morality and large heartedness as well. Mere speech in which innuendos
have been R made, person at the highest office has been attacked, does not
necessarily mean that the relationship has completely broken down and both ends
cannot meet together. The high office demands a sagacious, thoughtful, gracious
and benevolent attitude from the people at the high position and status. They
should have the depth of the sea and the vastness of the horizon to absorb all
sorts of follies, mistakes and even indecent conduct and attitude. There are
instances in history that people at such high elected offices have been at
variance, even belonging to different views and different parties, but in spite
of that they have run the Government well and according to the Constitution.
The best policy to run smoothly is to be above personalities and personal pride
and I
prejudice. In my view the tenor of the speech, in the background which
would have subsided with the passage of time, though offensive in nature prima
facie had some basis, but did not amount to subversion of the Constitution nor
could it create a complete deadlock or
stalemate resulting in collapse of the Constitutional machinery. Subversion of
the Constitution is high treason punishable with death. It cannot be determined
by referring to the speech alone and by an authority not competent to decide
it.
18. Our Constitution maintains the foundation and spirit of the
democratic principles enshrined in it. Although it may have a different look
than Westminster democratic principles, the spirit and the form is democratic.
The Constitution provides for specific powers of the President and the duties
of the Prime Minister with a view to keep them within their own boundaries and
the limits provided by it. In this regard I would refer to the relevant
provisions of the Constitution to illustrate what is the power and position of
the President and how the provisions govern the relations between the President
and the Prime Minister. The President is the Head of State and represents the
unity of the republic ‑‑‑ Article 41. Article 46 enumerates
duties of the Prime Minister in relation to the President. Under Article 48 the
President is to act on advice of the Prime Minister and the Cabinet. The
President is authorised to send back the opinion for reconsideration, but after
reconsideration if the opinion is rendered, the President shall act according
to it. Article 48(2) provides that notwithstanding anything contained in clause
(1) the President, shall act in his discretion in respect of any matter in
respect of which he is empowered by the Constitution to do so. The President in
his discretion or on the advice of the Prime Minister can refer any matter of
national importance to the referendum. The President may summon or prorogue
either House or both the Houses or the Majlis‑e‑Shoora ‑‑‑
Article 54. Under Article 56 the President may address either House or both the
Houses assembled together and for that purpose require the members to attend.
The President is empowered to send messages to either House whether with
respect to a Bill pending in Majlis‑e‑Shoora (Parliament) or
otherwise and a House to which any message is sent, shall at convenient
despatch consider any matter required by the message to be taken into
consideration. The President shall also address the first session after each
general election to the National Assembly and on the commencement of the first
session of each year of the Parliament. Under Article 58 the President is
empowered to dissolve the National Assembly in the
manner provided therein. The President may make rules in consultation
with the Speaker of the National Assembly and the Chairman of the Senate as to
the procedure with respect to the joint sitting of and communication between the two Houses ‑‑‑
Article 72. If a Bill is presented to the President for assent, he may
within 30 days give the assent or return it with his own recommendation and
advice for amendment. If after reconsideration the joint sitting of the Majlis‑e‑Shoora
passes the Bill in original form or in amended form, then the President shall
not withhold his assent. The President is also, empowered to promulgate
Ordinances when the National Assembly is not in, session ‑‑‑
Article 89. The executive authority of the Federation vests in the President
and he exercises the power either directly or through officers subordinate to
him in accordance with the Constitution ‑‑‑ Article 90. There
shall be a Cabinet of Ministers with the Prime Minister at its head to aid and
advise the President in exercise of his functions. The President in his
discretion shall appoint from amongst the members of the National Assembly a
Prime Minister, who in his opinion is most likely to command the majority of
the
House. The Prime Minister shall hold office during the pleasure of the
President, but this power will not be exercised by the President unless he is
satisfied that the Prime Minister does not command the majority of the House
which should be ascertained by the National Assembly in respect of which the
President may call its session and ask the Prime Minister to obtain vote of
confidence. The Cabinet together with Ministers of State shall be collectively
responsible to the National Assembly. The Federal Ministers and the Ministers
of State are appointed by the President on the advice of the Prime Minister‑‑Article
91. Under Article 99 all executive actions of the Federal Government shall be
expressed to be taken in the name of the President. Under Article 46 it shall
be the duty of the Prime Minister to communicate to the President all decisions
of the Cabinet relating to the administration of the affairs of the Federation
and proposals for legislation, to furnish such information relating to the
administration of the affairs of the Federation and proposals as the President
may call for and if the President so requires to submit for the consideration
of the Cabinet any matter on which a decision has been taken by the Prime
Minister or the Ministers, but which has not been considered by the Cabinet.
Thus, it is clear that the President in his functions and duties as provided by
the Constitution has to act on the advice of the Prime Minister, the Cabinet
and the Ministers. The President is empowered to advise the Cabinet and send
messages to the Prime Minister, the Cabinet as well as to the Houses. These
basic structures of the Constitution govern the relations between the President
and the Prime Minister. They have to work in cooperation with each other
irrespective of personal prejudices and difference of opinion. No doubt
difference of opinion is a part of democratic set‑up which if exercised
in a healthy manner improves and develops the constitutional functioning of the
Government and to the benefit of the country. The relationship between the two
is so sacred and so intimate in nature that it should not be allowed to be
disrupted, collapsed or obstructed by anyone of them on personal grounds. The
supreme interest is the governance of the country and also the progress and
prosperity of the nation. With this aim the Constitution has provided for a
working relationship between the President and the Prime Minister and Cabinet
and all functionaries and institutions provided in the Constitution. The basic
concept introduced is based on trichotomy of power ‑‑‑ the
executive, legislature and the judiciary. The moment the Constitutional
authorities transgress from these three pillars and seek aid of outside
agencies which are merely to help the executive, the legislature and the
judiciary whenever called upon, the trouble starts. None of the functionaries
constitutionally vested with power and defined functions should be allowed to
take help in their functioning and operation of such organisations and
institutions which have no say in the working of the three pillars and
institutions under the Constitution. So long these three pillars are made basis
for governing the country, I do not think that there can be any defect, any
remorse, remonstrance or trouble in the working relationship. The personal
likes and dislikes have no place in the Constitution. and the governance of the
country. The Constitution does not say that if the President does not like or
hates a particular Minister or Prime Minister he must quit or vice versa. Personal
likes and dislikes, must give way to the Constitutional provisions. The power
under the Constitution cannot be exercised on the basis of prejudice, pride,
hatred or friendship. It has to be straight, clean and honest obedience and
performance of the duties provided by the Constitution. The relationship
between the President and the Prime Minister is subtle and sensitive. It is
tender and firm. It should be gentle and strong. The observations of Sidhwa,
J., in Khawaja Ahmad Tariq Rahim’s case PLD 1992 Supreme Court 646,
particularly paragraphs 10 and 11 fully illustrate the duties and relationship
of the.President and Prime Minister as provided by the Constitution.
19. The learned Attorney‑General made great stress on the fact
that the speech rendered was of such a nature that there could be no
possibility of cooperation between the two. The learned counsel for the
petitioner referred to the speech of the President after the dissolution which,
according to him, is in no less harsh tone than that of Nawaz Sharif. He
further filed a rile containing press reports on the speeches rendered by Mrs.
Benazir Bhutto and SardaT Farooq Leghari and other leaders of the People’s
Party containing and making harsh remarks against the President. The object of
presenting this file was that in the past the leaders of the People’s Party and
of opposition have lashed, abused and even used harsher words than Nawaz
Sharif. Two wrongs cannot make a thing right. If one has committed a mistake,
the others should not repeat the same. He should correct it. Therefore, I am
not inclined to look into those documents to come to the conclusion that even
after such harsh speeches if the President can cooperate with Mrs. Benazir
Bhutto and PDA, why he cannot work alongwith Nawaz Sharif. This factual aspect
will not interfere in our decision at this stage because we are more concerned
with the Constitutional rather than the personal aspect of the leaders. Mr.
S.M. Zafar as referred to Constitutional Law and Administrative Law, Text and
Material by David Pollard and David Hugles in which the principles and
conventions regarding exercise of monarchical power by the Queen vis‑a‑vis
the advice rendered by the Prime Minister has been set out in the following
manner:-
“Rodney Brazier Constitutional Practice ((1988), pp. 145‑58):‑
The Queen’s usual powers.‑‑‑The Queen normally exercises her formal legal
powers on ministerial advice. Asquith admirably summarized matters in a minute
to George V in December, 1910
The part to be played by the Crown has happily been settled by the
accumulated traditions and the unbroken practice of more than seventy years. It
is to act upon the advice of the Ministers who for the time being possess the
confidence of the House of Commons, whether that advice does or does not
conform to the private and personal judgment of the Sovereign. Ministers will
always pay the utmost deference, and give the most serious consideration to any
criticism or objection that the Monarch may offer to their policy, but the
ultimate decision rests with them, for they, and not the Crown, are responsible
to Parliament.” (Quoted originally in Turpin British Government and the
Constitution Text Cases and Materials ((1985), pp.76‑77)
A Constitutional monarch will remember, before voicing either advice or
warning, that however long may be her experience she does not have to preside
over what may be a far from complainant Cabinet, she does not have to defend
herself to the public through the media, she does not have to manage the House
of Commons, or eventually face the electorate. What may be seen as an ideal
policy from Buckingham Palace may simply not be practical politics in the view
from Downing Street. The Sovereign will understand, too, that some of the
obligations owed to her may also be minor irritants or inconveniences from time
to time a hard‑pressed Prime Minister may wish that ideally his weekly
thirty‑minute or hour long audience could be missed deference to other pressures on him (but it is nevertheless rare
for that audience not to take place while Parliament is sitting).
The existence of the rights to advise and to warn must mean that the
Queen will have personal views about some political issues which will not
coincide with those of the Prime Minister and the Cabinet. Indeed, the opinions
of the Queen and of her Government could not always be the same unless she were
to undergo a very odd change of heart and mind on the main issues of the day
with every change of party Government. The Sovereign may urge her view on the
Prime Minister especially at the weekly audience (at which the two are alone
and no formal record is kept) ‑‑‑ but in strict confidence,
and in the end normally deferring to any contrary view presisted in by the
Prime Minister. Any public revelation of disagreement could be damaging to the
existing and future relationship between Head of Government and Head of State,
for obviously if it became known that the Queen*has criticized Government
policy, she might be taken to be biased against that Government and to be in
favour of another.‑
This passage gives an enlightened description of the conventions in the
British Parliament. We in our Constitution have provided basic principles in
writing Although conventions cannot play
a governing part in exercising the power by the President and Prime Minister,
yet in the light and experience which has transformed into conventions we can
seek their aid in interpreting the provisions of the Constitution. It confirms
that personal pleasure, dislike and hatred have no place in the Constitutional
set‑up. The monarch has to respect the advice of the Prime Minister and
the Prime Minister and Cabinet have likewise to show their respect and regard.
One striking feature pointed out is that a regular meeting between the Queen
and Prime Minister is held. The President has a right to counsel, advise and
send messages and in exercise of that right he can even ask the Prime Minister
and the Ministers to consult him. The Constitution provides basic structure,
but the edifice is built by practices and conventions. We do not seem to have
developed any such conventions for practising and making the Constitutional
provisions workable. The provisions regarding consultation are very important
and far‑reaching. If regular consultations between the President and the
Prime Minister be made a continuing feature of their working relationship, much
of the misunderstanding, differences and difficulties can be sorted out. From
the passage quoted above it seems that in UK there is a convention of regular
meetings between the Queen and the Prime Minister. We do not know how many
meetings the President and Prime Minister have held in a regular manner except
whenever they desire to meet each other according to the needs and exigencies.
The letters written by the President’s Secretariat show that there have been
various queries on many subjects and in many ways, but if the President and the
Prime Minister would have developed the convention of meeting each other
regularly, perhaps this exercise could have been avoided. It is a healthy
tradition and convention which not only has Constitutional backing but creates
a working relationship ironing out differences and personal animosities.
Frequent meetings do create grounds for
harmony and understanding. In future it should be made a practice that
the President and the Prime Minister should regularly meet at fixed intervals
which if not rigidly be properly observed. If this procedure would have been
adopted perhaps the country would not have seen this crisis.
20. Right of expression and speech is conferred by the Constitution an
regulated by law. Every restriction on free speech must pass the test of
reasonableness and overriding public interest. Restriction can be imposed and
freedom of expression may be curtailed provided it is justified by the “clear
and present danger” test enunciated in Saia v. N.Y. (1948) 334 U.S. 558 that
the substantive evil must be extremely seirous and the degree of imminence
extremely high. The danger should “imminently threaten immediate interference
with the lawful and pressing purposes of the law’ requiring immediate step to
ensure security of the country. Speech would be unlawful if it is directed to
inciting or producing imminent lawless action and is likely to produce such
action. Speech and conduct are two different concepts. Speech relates to
expression and conduct to action. Speech ends where conduct begins but if both
are combined the Court has to draw the dividing line. As held in American
Communications Association v. Douds (1950) 339 US 382 the freedom of expression
of views is curtailed or restricted when they “threaten clearly and imminently
to ripen into conduct against which the public has a right to protect itself’.
The concept of “clear and present danger” in USA was liberalised by making “imminence”
as a basic test. The following observation made in Whitney v. California 274 US
357 (1927) as quoted in Freedom and the Court by Henry, J. Abraham at page 204
will illustrate the point:‑‑
“Fear of serious injury cannot alone justify suppression of free speech
and assembly ... there must be reasonable ground to fear that serious evil will
result if free speech is practised. There must be reasonable ground to believe
that the danger apprehended is imminent. Therej must be reasonable ground to
believe that the evil to be prevented is a serious one ... In order to support
a finding of clear and present danger it must be shown either that immediate
serious violence was to be expected or was advocated, or that the past conduct
furnished reason to believe that such advocacy was then contemplated.
Those who won our independence by revolution were not cowards. They did
not fear political change. They did not exalt order at the cost of liberty. To
courageous, self‑reliant men, with confidence in the power of free and
fearless reasoning applied through the processes of popular Government, no
danger flowing from speech can be deemed clear and present, unless the
incidence of the evil apprehended is so imminent that it may befall before
there is opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes of
education, the remedy to be applied is more speech, not enforced silence.”
The effect, weight and impact of speech is to be judged from an overall
appreciation by looking to its background, the truthful statement made in it
and object with which it has been made. If such a speech makes allegation or
defames anyone without any justification, but does not create lawlessness,
disorder, or threat to security or disruption, it will hardly amount to
subversion of the Constitution. In my view the contention that the speech had
created the gulf between the parties and had ignited the situation to a point
of no return creating deadlock and stalemate does not have any force.
21. The Council of Common Interests is an important Constitutional
institution which irons out differences, problems and irritants between the
Provinces inter se and the Provinces and the Federation in respect of matters
specified in Article 154. The Council is responsible to Majlis‑e‑Shoora,
which in joint sitting may from time to time by resolution issue directions
through the, Federal Government generally or in particular matters to take
action as the Parliament may deem just and proper and such directions shall be
binding on the Council. Ground C(i) of the dissolution order specifies that the
Council of Common Interests has not discharged its Constitutional functions to
exercise its powers particularly in the context of privatisation of industries
in relation to the subject‑matter mentioned in Article 154. The
petitioner has stated that the Council of Common Interests which had remained a
dormant organisation since its creation was activated and three meetings were
held on 12‑1‑1991, 21‑3‑1991 and 16‑9‑1991.
The Council reached decisions on the apportionment of Indus water at its
meeting held on 31‑3‑1991 and approved setting up of Indus Water
Authority. It also approved for the first time its rules of procedure. It also
prepared for the next meeting of the Council in May, 1993 and pre‑CCI
meeting was held with the Chief Ministers. Under this ground reference has been
made to privatisation which relates to WAPDA, Electricity and Railways. It was
pointed out that WAPDA has not so far been privatised and only an exercise is
being carried on to see the feasibility of privatisation. So, is the case with
electricity and so far Railways is concerned, there has been no scheme for
pirvatisation except that ticketing in certain areas has been privatised. From
the correspondence filed by both the parties and the documents brought on
record it seems that the Chief Minister of Sindh as late as March, 1993, made a
grievance‑‑about the privatisation of WAPDA. Such a complaint was also made by the Chief Minister of N.‑W.F.P.
The grievances set out do not relate to any other items of conflict in that
area. The objections raised were in respect of matters which were yet to be
considered and could have been sorted out in future. However, the working, the
performance, the actions taken by the Council of Common Interests during the
past two years was not commented upon or objected to. In these circumstances,
the allegation that the performance was not in accordance with the Constitution
or it was not perfect and proper cannot be made a ground for dissolution of the
National Assembly. The learned Attorney‑General referring to the
observations in Khalid Malik’s case P L D 1991 Kar. I and Khawaja Ahmad Tariq
Rahim’s case P L D 1992 SC 646 made in respect of the Council of Common
Interests, contended that similar ground mentioned in the Dissolution Order
made in 1990 was held to form a basis for dissolution of the Assembly. It may
be pointed out that the grounds regarding CCI in the case of 1990 and in the
case of 1993 were completely different. While dismissing the National Assembly
in 1990 it was stated that the Federal Government had not allowed to convene or
to hold the meeting of CCI. There had been protests by three Provinces, but no
heed was paid. In fact two Provinces had even filed petitions in Court for
convening the meeting of the CCI. In this way the charge was that the Federal
Government intentionally obstructed the working of the institution created by
the Constitution. In this regard Shaflur Rahman, J. in Khawaja Ahmad Tariq
Rahim’s case at page 666 observed as follows:‑‑
“As regards the second ground, we find sufficient correspondence on
record to indicate that persistent requests were made by the Provinces for
making functional the Constitutional institutions like Council of Common
Interests, National Finance Commission with a view to sort out disputes over
claims and policy matters concerning the Federation and the Federating Units as
such. In spite of the intercession of the President, no heed was paid,
Constitutional obligations were not discharged thereby jeopardizing the very
existence and sustenance of the Federation.”
In Khalid Malik’s case while dealing with this ground it was observed
as follows:‑‑
“The aforesaid correspondence and statements clearly demonstrate that
the former Federal Government was not prepared to hold meeting of the CCI
although if not all some demands made by the provinces fell within its ambit.
This attitude led to confrontation between two provinces and the Federation and
there seemed no way out to settle the outstanding demands and issues.”
on the same point Sidhwa, J. in Khawaja Ahmad Tariq Rahim’s case at
page 701 observed as follows:‑‑
“Nevertheless, * the extreme polarisation and political confronation
existing between both the parties on almost every issue, could not totally.
relieve the Coalition Government from complying with the provisions of the
Constitution. In this background, I would hold that there were strong compulsions
on the Coalition Government to call the meetings. The failure of the Coalition
Government, therefore, to allow the Council of Common Interests to discharge
its functions and exercise its powers and to call a meeting of the National
Finance Commission, created extreme bitterness and political deadlock between
the Federation and the Provinces, contributing to a breakdown in the functional
working of the Federal Government. In these circumstances, I would hold that
the said matters did constitute proper grounds which the President could have
taken into consideration when forming his opinion and that they had a nexus
with the breakdown of the Constitutional machinery.”
22 Grounds c(ii) and c(iii) are sufficiently vague. However, so far the
working of the National Economic Council and its executive committee is
concerned, the petitioner has brought material on record to show that meetings
were regularly held and problems were sorted out. The National Economic Council
which is an advisory body met regularly every year (20‑5‑1991 and 5‑5‑1SK)2)
in accordance with the practice in vogue since 1973 to approve the next year
development plan and policies on the basis of comprehensive papers prepared by
the Planning Commission and other Ministries concerned. The next meeting was
scheduled to be held in May, 1993. Similarly the executive committee of the
National Economic Council held meetings regularly at least four times a year
with the participation of Provincial Finance and Planning Ministers and other
officials. The last three meetings were held on 17‑10‑1992, 11‑2‑1993
and 6‑3‑1993 to approve a large number of projects in all sectors.
These grounds, however, do not satisfy the test laid down by this Court for
passing an order of dissolution of the National Assembly. Under ground c(iii)
of the dissolution order it was stated that the Constitutional powers, rights
and functions of the Provinces have been usurped, frustrated and interfered
with in violation o! inter alia Article 97. This has been denied by the petitioner
and in fact the description is so vast, wide and vague that it can hardly
justify the order of dissolution.
23. Clause (d) of the order speaks of maladministration, corruption and
nepotism which according to it had reached such proportions in the Federal
Government, its various bodies, authorities and other corporations including
banks supervised and controlled by the Federal Government, the lack of
transparency in the process of privatisation and in the disposal of
public/Government properties, that they violate the requirements of the oath(s)
of the public representatives together with the Prime Minister, the Ministers
and Ministers of State prescribed in the Constitution and prevent the
Government from functioning in accordance with the provisions of the
Constitution. In the petition while referring to these grounds it has been
stated that it does not refer to any fact whatsoever which is a requirement of
law for exercise of power under Article 58(2)(b). It was further pleaded that
the wholesale condemnation of entire Cabinet indicates that the alleged facts
have not been individually considered at all. In the written statement riled by
respondent No.1 these allegations were denied and it was stated that the
instances of maladministration, corruption, nepotism and various other
allegations contained in that para. are numerous and well‑known and based
on facts, records, documents and informations which were before the President
before passing the order and some of which have been annexed with the written
statement as Annexures ‘A’‑A‑12 and B‑R’. The learned
Attorney General contended that the corruption, nepotism, lack of transparency
in the process of privatisation, the sale of Muslim Commercial Bank and cement
factories, grant of permission to various banks and misuse of resources of the
Government have direct nexus with the order of dissolution. The learned
Attorney‑General has referred to these documents which have been annexed
to establish the contention raised by him.
24. The word ‘corruption’ has not been defined by any law, but it has
diverse meaning and far‑reaching effects on society, Government and the.
people. It covers a wide field and can apply to any colour of influence, to any
office, any institution, any forum or public. A person working corruptly acts
inconsistent with the official duty, the rights of others and the law governing
it with intention to obtain an improbable advantage for himself or someone
else. Dealing with corruption in Khalid Malik’s case I had observed as follows:‑‑
“This bribe culture has plagued the society to this extent that it has
become a way of life. In Anatulay VIII (1988) 2 SCC 602 where Abdul Rehman
Antulay, Chief Minister of Maharashtra was prosecuted for corruption Sabyasachi
Mukharji, J. laments as follows:‑‑
‘Values in public life and perspective of values in public life, have
undergone serious changes and erosion during the last few decades. What was
unheard before is common place today. A new value Prientation is being
undergone in our life and culture. We are at threshold of the cross‑roads
of values. It is, for the sovereign people of this country to settle these
conflicts yet the Courts have a vital role to play in these matters.’
The degeneration in all walks of life emanates, from corruption of power
and corruption of liberty. Corruption breeds corruption. ‘Corruption of liberty’
leads to ‘liberty of corruption’.”
Corruption and bribery adversely affect the social, moral and political
life of the nation. In society rampant with corruption peoples lose faith in
the integrity of public administration. In India in 1964 Committee on the
Prevention of Corruption known as Sanathanam Committee observed as follows:‑
‘It was represented to us corruption has increased to such an extent
that people have started losing faith in the integrity of public
administration. We had heard from all sides that corruption, in recent years,
spread even to those levels of administration from which it was conspicuously
absent in the past. We wish we could confindently and without reservation
assert that at the political level Ministers, legislators, party officials were
free from the malady. The gcnQral impressions arc unfair and exaggerated. But
the very fact that such impressions are there causes damage to social fabric.’
The Committee also observed that there is a popular belief of
corruption among all classes and strata which ‘testifies not merely to the fact
of corruption but its spread’. Such belief has a social impact causing damage
to social fabric.’
The anti‑corruption and penal laws have remained ineffective due
to their inherent defect in adequately meeting the fast multitudinous growth of
corruption and bribery. Corruption in high places has remained unearthed
leading to a popular belief that immunity is attached to them. To combat
corruption the whole process and procedure will have to be made effective and
institutionalised.”
However, the Supreme Court in Ahmad Tariq Rahim’s case at page 6
observed that the grounds like corruption, nepotism, misuse of banks and
violation of Articles 240 and 242 relating to the services may not be independently insufficient to
warrant such an action (order of dissolution). They can, however, be invoked,
referred to and made use of with grounds more relevant like ground (a) (failure
of legislative functions of the National Assembly) and (b) ‑‑‑
wilful undermining and impairing the working of the C Constitutional
arrangements and usurping the authority of the Provinces and such institutions resulting in discord,
confrontation and deadlock adversely affecting the integrity, solidarity and
well‑being of Pakistan. This view is binding on me. In the present case
the learned Attorney‑General has pointed! out about the corruption,
nepotism and lack of transparency in the process of privatisation of Muslim
Commercial Bank and sale of cement factories, but on examination of those
documents and the explanation offered by the petitioner the same cannot form an
independent ground for dissolution. They, however, i may be taken into consideration
provided some substantial, effective and wellrecognised grounds as set out in
the judgments of this Court are proved and made out against the petitioner.
25. Ground (c) refers to unleashing a reign of terror against the
opponents of the Government including political and personal rivals/relatives
and mediamen , under the direction, control, collaboration and patronage Of D
the petitioner and Ministers leading to a situation where the Government cannot
be carried on in accordance with the provisions of the Constitution and law.
This charge is too vague to be taken into consideration.
26. Ground (f) is likewise sufficiently vague and cannot give an
independent cause for dissolution of the Assembly. In ground (f)(i) it has been
stated that the Cabinet has not been taken into confidence or decided upon
numerous Ordinances and matters of policy and ground (f)(ii) states that the
Federal Ministers have even been called upon not to see the President. In a
democratic pattern of Constitution the theory of collective responsibility will
be applicable to the working of the Cabinet and the Government. In a
parliamentary form of Government the leader of the majority party becomes the
Prime Minister and forms the Government. The Cabinet Ministers are appointed by
the President on the advice of the Prime Minister. The principle of collective
responsibility applies to the Ministers. They may differ inside on an issue,
but if the Cabinet has taken a decision, the dissenting Minister in all
propriety avoids expressing disagreement in public. The Cabinet decision is
binding on all the Ministers whether they agreed or ‘not and whether they were
E1_ present or not* in the meeting. In Parliament, Functions, Practice and,
Procedures by JA.G. Griffith and Michael Ryle at page 23 the principle of I
collective responsibility has been explained as follows:‑‑
“The principle of collective responsibility, as applied to Cabinet
Ministers, means that each Minister accepts responsibility for the decisions of
the whole Cabinet. Inside the Cabinet, a Minister may argue for a different
course of action but he is expected not to express, public disagreement with
the course decided on though dispensation
may be given to a Minister on ‘ a matter particularly affecting his
constituency. If he feels very strongly on a matter he may resign in which case
he will have an opportunity to make a statement in Parliament. This version of the doctrine
applies in the simplest case where Ministers are present at the Cabinet meeting
where the decision is taken. But it also applies to Cabinet Ministers who are
not present and so could not be said to participate in the making of the)
decision; and to those decisions of Cabinet Committees which are not required
to be endorsed by the full Cabinet and the existence of which, some Ministers
may be unaware. The Chairman of each Cabinet Committee decides, after
consultation with the Prime Minister (where? the Chairman is not the Prime
Minister), whether decisions of the committee may be taken by a dissident Minister
to the full Cabinet.”
27. The question that Cabinet has not been taken into confidence seems
to be based on certain complaints made by certain Ministers, but if the
principle of collective responsibility is applied, such complaints have no
substance. The President can seek advice from the Cabinet, Prime Minister and
the Ministers, but merely if a Prime Minister calls upon his Ministers not to
see the President, a Minister is not bound to obey that desire or order. More
instructions, orders or desire of the Prime Minister asking the Ministers not
to see the President can hardly be a ground for dissolution of the Assembly. It
becomes more of personal in nature than Constitutional. Nobody can stop meeting
any person legally, constitutionally or socially unless the law provides for
such prohibition. But if any person indulges in such activity, it cannot affect
the functioning of the Government. From the documents riled it seems that in
spite of the asking of the Prime Minister, the Ministers have frequently been
visiting the President and had not cared for such a direction.
28. Grounds (f)(iii) and (iv) relate to financial discipline of the
Cabinet and the Government. In this regard several documents have been referred to by the learned
Attorney‑General, but the learned counsel for the petitioner has referred
to the address of the President in December, 1991 and December, 1992, and the
report of the World Bank in which financial discipline has not received any
adverse comments. In fact it has been appreciated and praised. It was pointed
out that the President’s address to the National Assembly is based on the
information received by the President’s Secretariat from the Prime Minister’s
Secretariat. It is true that it has been a practice or convention in England
that the Prime Minster’s office prepares the speech of the Queen. But this
convention does not seem to have been followed in Pakistan as the address of
the President is prepared in the President’s Secretariat perhaps based on the
information received from the Government and the Cabinet. The comments and the
suggestions mentioned in the address justify this view. In this regard Mr.
Yahya Bakhtiar has riled and referred to the address of the President prior to
1991 from which it is clear that comments and cirticism have been made by the
President on the policies of the Government, and surely the same would not have
been provided by the Government or the Prime Minister. Considering the practice
adopted in our country the President’s address assumes greater importance in
the facts and circumstances of this case and that is why the learned counsel
for the petitioner has laid great emphasis and placed reliance on this address.
Having considered all these 1H aspects of the case, in my view, the financial
irregularities could not be an 1H independent ground for dissolving the
Assembly.
29. Ground (g) relates to the allegations made by the Begum Nuzhat Asif
Nawaz, widow of late Army Chief of Staff. According to it, highlianded
treatment was meted out to her husband and the circumstances culminating in his
death indicate that the highest functionaries of the Federal Government have
been subverting the authority of the Armed Forces and the machinery of the
Government and the Constitution itself. The allegations made in it are highly
sensitive and security‑orictited. On the face of it they seem to be
merely based on suspicion and imaginations. The petitioner while challenging
this ground has termed it as a concocted one. The allegation is based on press
statement of Begum Nuzhat Asif Nawaz in which she had alleged that her husband
was killed by a conspiracy and was poisoned. According to the petitioner the
statement was arranged by respondent No.1 in order to discredit the petitioner.
A high powered Inquiry Commission consisting of three Judges of the Supreme
Court was appointed immediately and although there is quite a lot of dispute
between the parties, as to who and at what time it was appointed, but without
going into that controversy the fact remains that the Inquiry Commission was
appointed and it has submitted its report as well. From para.6 of the written
statement dealing with this ground and averment of the petitioner it seems that
entire reliance has been placed on the statement of Begum Nuzhat Asif Nawaz and
it has been reiterated that the order refers inter alia to the highhanded
treatment meted out to the late Chief of Army Staff. This allegation is based
merely on the statement of Begum Nuzhat Asif Nawaz which was made three months
after the death of her husband. One wonders how this particular ground can have
any nexus with the order of dissolution. From the press clippings and
statements which have been referred to by both the learned counsel and for that
reason I am referring them, it seems that two persons, one a Cabinet Minister
and the other a high‑ranking Government official in the Secret Service
were accused of planning and committing murder. From the letters exchanged
between the petitioner and the President’s Secretariat it seems that those two
persons were asked to be removed by the President, but no positive reply was
received from the petitioner and instead he made the speech of 17‑4‑1993.
The statement and allegation made by Begum Nuzhat Asif Nawaz should not have
been given that much importance or even made a ground for dissolution, and it
seems that everything which was found on the ground was picked up to justify
the action. on query made, the learned Attorney‑General explained that
the statement had created a lot of
agitation and dissatisfaction amongst the Army and it was therefore,
necessary that serious notice of the fact may have been taken. True
that the statement was unfortunately published and publicised and there
must have been some reaction or whispering in the Armed Forces as would have
been in general public because the allegation itself was very sensational, but
to say that this had created dissatisfaction and uneasiness among the Army is
without any justification. Not a single instance of such dissatisfaction,
agitation or apprehension that if immediate step is not taken some
unconstitutional incident may happen or the security of the State will be
jeopardised has been brought on the record. Undue importance has been given and
undue
exploitation has been made of the situation which has only spoiled the
atmosphere at the political and governmental level. Such matters are not to be
brought to the public and exhibited in the manner it has been done. The
immediate action taken by constituting a Commission was sufficient to subside
this uneasiness which had disturbed the mind of respondent No.1 Many important
issues and crises do arise and even more serious allegations are made and once
a Commission is appointed, it comes under control or cools down. In such
circumstances, in my view, this was completely irrelevant ground i and seems to
have been made merely to overcharge an already charged atmospere by introducing
Army interference arid dissatisfaction.
30. Ground (g) is merely a summing up and residuary ground depending
upon the aforesaid grounds which have been dealt with. It also alleges that due
to aforestated grounds the Government of the Federation is not in a position to
meet properly and positively the threat to security and integrity of Pakistan
and further due to economic crisis fresh mandate from the people of Pakistan is
required. Two questions arise whether in the situation enumerated above the
Government cannot be carried on in accordance with the provisions of the
Constitution and secondly, does this situation require a fresh public mandate,
These are the requirements of Article 58(2)(b). The learned counsel for the
petitioner has argued that these are two independent conditions and unless both
are satisfied no order of dissolution can be passed. In my humble view both the
conditions are inter‑related and inter‑dependent. They are
inseparable and indivisible. The second condition viz., “an appeal to the
electorate is necessary” limits and circumscribes the dimension and scope of
the first condition. The facts attracting the first condition should be so
dangerous and explosive that they call for a fresh mandate. The opinion to be
formed whether fresh mandate is required will be subjective in nature which can
be judicially reviewed. In the present case as the first condition was not
satisfied, the second condition could not be invoked.
31. The learned Attorney‑General has contended that the order of
dissolution is similar to the order of dissolution passed in 1990 and,
therefore, it should be upheld in the light of the observations made in Khawaja
Ahmad Tariq Rahim’s case. This contention is misconceived. Some of the grounds
may have similarity in description but the grounds on which the order of
dissolution of 1990 was upheld are not available in the present case. In
Khawaja Ahmad Tariq Rahim’s case this Court had observed that “grounds like “C”
(Corruption and nepotism), “e(ii)” (misuse of authority, resources of
Government including statutory corporations and banks for ‘political end and
personal gains) and “e(iii)” (undermining civil services and disregarding
Articles 240 and 242) may not. have been independently sufficient to warrant
such action. They can, however, be invoked, referred to and made use alongwith
grounds more relevant like “a” (scandalous horse‑trading for political
gains and furtherance of personal interest and failure to discharge legislative
business othei than Finance Bill) and “b”. (Council of Common Interests and
National Finance Commission was not allowed to function) “which by themselves
are sufficient to justify the action taken”. Ground “a” reproduced above is not
available in the present case. The difference in charge “b” relating to CCI in
both the orders has been explained earlier.
32. Dr. Farooq Hasan, the learned counsel for the petitioner in Petition
No. 12 of 1993 contended that as the Speaker had summoned the requisitioned K
meeting of the Assembly under Article 54(3), the President could not have
dissolved it. Under this provision Speaker can summon the meeting of the
National Assembly and prorogue it. Article 54(3) does not limit the power of
the President to dissolve the Assembly.
33. ‘For the aforesaid reasons as the case does not fall within the
ambit of Article 58(2)(b) and there being no valid reason to refuse restoration
of the Assembly, the petition is allowed in terms of the short order, dated 26‑5‑1993.
The impugned order is declared to have been passed without lawful authority and
of no legal effect. As a consequence, the National Assembly, Prime Minister and
the Cabinet shall stand restored and entitled to function as immediately before
the impugned order was passed. All steps taken pursuant to the order, dated 18‑4‑1993
passed under Article 58(2)(b) of the Constitution such as the appointment of
the Care‑taker Cabinet etc. will, therefore, be of no legal effect.
However, all orders passed, acts done and measures taken in the meanwhile by
the Care‑taker Government, which have been done, taken and given effect
to in accordance with the terms of the Constitution and were required to be done
or taken for the ordinary orderly running of the State shall all be deemed to
have been validly and legally done.
SAEEDUZZAMAN SIDDIQUI, J.‑‑‑The abovementioned
petitions under Article 184(3) of
the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as
“the Constitution” only) are filed by the petitioners to challenge the
dissolution of National Assembly of Pakistan, by the President, in exercise of
his powers under Article 58(2)(b) of the Constitution on 18‑4‑1993.
The first mentioned petition is filed by the deposed Prime Minister, the second
and third by two former members of dissolved National Assembly and the last one
by an advocate.
The learned Attorney‑General and Mr. S.M. War, the learned
counsel for the Care‑taker Prime Minister have jointly challenged the
maintainability of these petitions under Article 184(3) of the Constitution.
The learned Attorney‑General contended that by dismissal of the Federal
Cabinet and dissolution of National Assembly no fundamental right of any of the
petitioners guaranteed under Chapter 1 of Part 11 of the Constitution has been
violated, so as to attract the jurisdiction of this Court under Article 184(3)
of the Constitution. It is also contended by the learned Attorney‑General
that the freedom of Association guaranteed under Article 17 of the Constitution
is restricted in its application to the formation of a political party and its
membership which does not include the right to get elected to Parliament or to
continue as member thereof. It is, accordingly, contended by the learned
Attorney‑General that dismissal of the Federal Cabinet and the
dissolution of the National Assembly did not give rise to the infringement of
any of the fundamental rights of the petitioners so as to entitle them to
invoke the jurisdiction of this Court under Article 184(3) of the Constitution.
Supplementing the above contentions of learned Attorney‑General Mr. S. M.
War, the learned counsel for Care‑taker Prime Minister, argued that in
order to attract the jurisdiction of this Court under Article 184(3) of the
Constitution, two essential conditions must be shown to exist in the case.
Firstly, that the case involves a question of public importance and, secondly,
the impugned order/action has violated any of the Fundamental Rights guaranteed
under Chapter I of Part 11 of the Constitution. Mr. S.M. Zafar while conceding
that the questions involved in the present petitions, may fall in the category
of issues of public importance, very vehemently contended that this fact alone
would not make these petitions maintainable under Article 184(3) of the
Constitution, as the second important jurisdictional requirement of the case,
namely, the infringement of the Fundamental Rights guaranteed in Chapter I of
Part II of the Constitution is non‑existent in the case. The learned
counsel went on to argue that under the stress of issue of public importance,
this Court would not get involved in a case which did not relate to the
enforcement of any of the Fundamental Rights. According to Mr. S.M. War, the
order of dissolution of National Assembly passed by the President is’,‑bot
referable to any of the Fundamental Rights mentioned in Chapter 1, Part 11 of
the Constitution so as to make out a
case of infringement of Fundamental Rights. The learned counsel relied on the
provisions of the Constitution relating to the dissolution of National Assembly
on the advice of Prime Minister, and contended that it could not be disputed
that in the event of dissolution of National Assembly on the advice of Prime
Minister, no petition either under Article 199 or 184(3) of the Constitution
could be filed to challenge such dissolution. This fact, according to Mr. S.M.
Zafar, supports the contention of respondents that no vested right could be
claimed by the members of the National Assembly in respect of the tenure of
National Assembly prescribed under the Constitution. With reference to rights
guaranteed under Article, 17 of the Constitution to form a Political Party and
to be a member thereof, Mr. S.M. Zafar, contended that so long a Political
Party is not obstructed in taking part in the political process, which,
according to learned counsel, terminates with the holding of election and
induction of elected persons into Assemblies as members thereof, there cannot
conceivably be any complaint regarding violation of the right of freedom of
Association guaranteed under Article 17 of the Constitution. The learned
counsel further contended that if the Court finds that the impugned action of
President violated some provisions of the Constitution other than those
relating to Fundamental Rights then the proper course for the petitioner will
be to challenge the same in a properly constituted proceeding before the High
Court under Article 199 of the Constitution and not under Article 184(3),
before this Court.
Replying to the above preliminary objections of the respondents, Mr.
Khalid Anwar, the learned counsel for former Prime Minister contended that sub‑clause
(2) of Article 17 of the Constitution which guarantees the right to form and to
become a member of a Political Party is a peculiarity of our Constitution, as
no other Constitution of the world guaranteed such a right specifically under
the Fundamental Right of freedom of Association. The learned counsel contended
that specific mention of the right to form and to become a member of a
Political Party in Article 17 of the Constitution, therefore, has to be given a
special treatment in the scheme of our Constitution. , On the above premises,
Mr. Khalid Anwar contended that it would not be correct to equate this specific
right with the ordinary right of freedom of Association guaranteed under
Article 17 (supra). The learned counsel further contended that in addition to
the right to form and become a member of a Political Party, our Constitution
also guaranteed Political Justice as a fundamental right, as would appear from
the Objectives Resolution, which, now forms part of our Constitution in the
shape of Article 2A. According to learned counsel the political activity of a
Political Party does not terminate with the election of its members to the
Assembly as election to Assembly is only a means and not the end for the
objects of a Political Party. The learned counsel in support of his above
contentions relied on the two decisions of this Court reported as Miss Benazir
Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Miss Benazir Bhutto v.
Federation of Pakistan PLD 1989 SC
66. The contentions of the learned counsel for the petitioners are not
without force.
The right to form a Political Party and to become its member has been
specifically conferred by Article 17 of our Constitution. Our attention has not
been drawn to any other contemporary Constitutional document in which a right
to form a ‘Political Party’ and to become its member has been specifically
guaranteed as a fundamental right under the concept of freedom of Association.
It is a well‑established principle of interpretation that no surplusage
or redundancy is to be attributed to the legislature, muchless to the framers
of the Constitution. The Constitution is the basic and an organic document and
therefore, every word used therein has to be assigned some meaning. Again the
Courts while interperting a provision of the Constitution relating to
enforcement of Fundamental Right, will lean towards its more liberal and
beneficial construction. Since the right to form a Political Party and to
become its member has been specifically guaranteed under Article 17 of the
Constitution, it has to be given specific meaning apart from the general right
of freedom of Association mentioned in Article 17 (supra). The expression ‘Political
Party’ is not defined in the Constitution. However, this expression has been
defined in section 2(c) of the Political Parties Act of 1962, as follows:‑‑
(c “Political Party’
includes a group or combination of persons who are operating for the purpose of
propagating any political opinion or indulging in any other political activity.”
The word ‘Political’ is defined in Concise Oxford Dictionary, as
follows:
“(1) of or affecting the
State or its Government; of public affairs; of politics;
(2) (of person) engaged in
civil administration;
(3) having an organized
form of society or Government;
(4) belonging to, or
taking, a side in politics; relating to person’s or organization’s status or influence (a political decision).
(5) …………………..
The words ‘Political’ and ‘Political Party’ are terms of Political
Science. Therefore, it will be advantageous to ascertain as to how these terms
are understood by a student of Political Science. In Corpus Juris Secundum
Volume 72, page 222, the word ‘Political’ is explained as follows:‑‑
“POLITICAL.‑‑‑A word of broad meaning, said to have
many shades of meaning. In its higher and true sense ‘Political’ means that
which pertains to the Government of a nation. So used, ‘political’ is defined
to mean belonging to the science of Government; treating of polity or politics;
as political theories; of or pertaining to the conduct of Government; of or
pertaining to, or incidental to the exercise of, functions vested in those
charged with the conduct of the Government; pertaining to policy or the
administration of Government; relating to the management of affairs of State.
‘Politican is also defined to mean having or conforming to, a polity,
or settled system of administration, as a political body or Government; having
an organized system of Government, administering a polity, as a fully developed
political community.
In a generic sense, ‘political’ means of or pertaining to the exercise
of the rights and privileges or the influence by which individuals of a State
seek to determine or control its public policy‑, having to do with the
organization or action of individuals, parties, or interests which seek to control
the appointment or action of those who manage the affairs of a State.
The term ‘political’ in its broadest sense includes the entire system
of laws, Constitutional and statutory, of a Government, and should not be
narrowed so as to be exclusively applied to groups and parties advocating
political views or policies.
In its ordinary meaning the term is not limited to something pertaining
merely to the actual management of a Government by individuals for the time
holding office thereunder, but the essential significance in proper and
ordinary use of the word includes anything pertaining to the establishment of a
form of Government.”
Similarly, the expression “Political Party” is defined in Corpus Juris Secundum, in Volume 29 at page
107 as follows:‑‑
“in ascertaining the meaning of the words ‘political party, in the
absence of a statutory definition, resort must be had to the generally accepted
meaning of the term, which has been defined as an unincorporated vpluntary
association of persons sponsoring certain ideas of Government; a body of
individuals banded together for the propagation of the political principles or
beliefs that they desire to have incorporated into the public policies of the
Government; a body of people contending for antagonistic or rival opinions or
policies in a community or society, especially one of the opposing political
organisations striving for supremacy in a State; a company or number of persons
ranged on one side or united in opinion or des gn in opposition to others in the
community‑, a number of persons united in opinion or action, as
distinguished from, or opposite to, the rest of a community or association,
especially one of the parts into which a people is divided on questions of
public policy‑, those who favour, or are
united to promote certain views or opinions. A political party has also been defined as an association of voters
believing in certain principles of Government, formed to urge the adoption and
execution of such principles in Governmental affairs through officers of like
belief‑, a body of men associated for the purpose of furnishing and
maintaining the prevalence of certain political principles or beliefs
in the public policies of the Government; a body of men united for promoting, by their joint endeavour, a
national interest on some particular
principle in which they are all agreed; a voluntary association for political purposes; a voluntary
association of electors, having
an organization and committee, and having distinctive opinions on some or all of the leading
political questions of controversy in the State, and attempting through its
organization to elect officers of its own party faith, and make its political
principles the policy of the Government.”
This Court in the case
of Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 while considering
the scope of the expression “Political Party” in the context of rights
guaranteed under Article 17(2) of the Constitution and the restriction imposed
by the Political Parties Act, observed as follows:‑‑
“Reading Article 17(2) of the Constitution as a whole it not only
guarantees the right to form or be a member, of a political party but also to
operate as a political party. As earlier held, the words “right to form” is not
only confined to its formation but to its function as a political party. The
political party, according to its texture, of being an aggregate of citizens
composing the party can exercise the other rights guaranteed under the
Constitution like an individual citizen. Again the forming of a political party
necessarily implies the carrying on of all its activities as otherwise the
formation itself would be of no consequence. In other words the functioning is
implicit in the formation of the party.”
In a later case reported as Benazir Bhutto v. Federation of Pakistan
PLD 1989 SC 66, this Court while examining the effect of amended section 21 of
the Political Parties Act, 1962 on the rights of a Political Party guaranteed
under Article 17(2) of the Constitution, held as follows:‑‑
“Our conclusion therefore, is that section 21 of the Act as amended by
Ordinances Nos. 11 and VIII of 1985, is violative of Fundamental Right ‘contained
in Article 17(2) of the Constitution in so far it fails to recognize the
existence and participation of the Political Parties in the process of
elections, particularly in the matter of allocation of symbols and is for that
reason void to that extent. Every Political Party is eligible to participate in
the Elections to every seat in the National and the Provincial Assemblies
scheduled to be held on the 16th of November, 1988. The Political Parties shall
be entitled to avail of the provisions of sub‑rule (2) of rule 9 of the
Rules to seek allotment of any of the prescribed symbols.”
From the preceding discussion, it clearly emerges that a Political
Party is a voluntary association of persons, formed with the object of
propagating a definite political opinion/view on a matter of public importance,
having an ultimate aim to get into the power seat of a Government, through the
process of election, in order to give effect to its programme. At this stage it
will be beneficial to reproduce here the provisions of Article 17(2) of the
Constitution which is as follows:‑
“(2) Every citizen, not being
in the service of Pakistan, shall have the right to form or be a member of a
political party, subject to any reasonable restrictions imposed by law in the
interest of the sovereignty or integrity of Pakistan and such law shall provide
that where the Federal Government declares that any political party has been
formed or is operating in a manner prejudicial to the sovereignty or integrity
of Pakistan, the Federal Government shall, within fifteen days of such
declaration, refer the matter to the Supreme Court whose decision on such
reference shall be final.”
From the language of Article 17(2) (supra) it is quite clear that not
only the formation and membership of a Political Party is within the
contemplation of this Article but its operation and functioning is also within
its purview. This is quite evident from the latter part of Article 17(2) which
provides that when the Federal Government declares that a Political Party has
been formed or is operating in a manner prejudicial to the soveriegnty or
integrity of Pakistan, it shall refer the matter to this Court for decision.
The word “operation” is defined in Concise Oxford Dictionary as follows:‑‑
.operate;
(1) be in action, produce
an effect, exercise influence....
(2) perform surgical or
other operation (on); (try to) execute purpose; (Mil) carry on strategic
movements; (of stockbroker etc.) buy and sell esp. with a view to influencing
prices.
(3) bring about,
accomplish; manage, work, conduct ........
In Black’s Law Dictionary, the word “operation” is defined as under:‑‑
.operate. To perform a function, or operation, or produce an effect.
Operation.
Exertion of power; the process of operating or mode of action; an
effect brought about in accordance with a definite plan; action; activity.”
There is nothing in the language of Article 17(2) (supra) to suggest F
that the word “‘operation” is to be given any restricted meaning. I am,
therefore, of the View that the operation of a political party in its ambit
includes the entire political process beginning from the formation of the
party, propagation of its views on matters of public importance, taking part in
elections and when voted to power by a popular vote to form the Government of
its choice and to complete its terms in the office in accordance with the
provisions of the Constitution. It needs no mention here that a long, vigorous
and sustained effort is needed by a Political Party to win public support to
its programme and sometimes it may require a lifetime effort by a Political
Party to educate public opinion on issues of public importance propagated by
it. Therefore, to get elected to Assemblies and to form the Government of its
choice, in the even of success, is not only the paramount and cherished goal of
every Political Q. Party but it is inherent in its operation and functioning.
Considering in the above context, the right to form a Political Party
guaranteed under Article 17(2) of the Constitution necessarily includes in it,
the right to continue in power, if directly elected by the people, for the full
tenure, subject to other provisions of the Constitution. It, therefore,
necessarily follows that a duly elected political Government if ousted or
interrupted from continuing in power through unconstitutional means, can
legitimately make a grievance that its Fundamental Right under Article 17(2) of
the Constitution has been violated. If the contention of learned Attorney‑General
and the counsel for respondent No.3 is accepted, the role of Political Parties
will be reduced to a mere debating societies engaged in academic discussions on
political issues of public importance, which in my humble opinion was not in
the contemplation of the framers of the Constitution while specifically
guaranteeing the right to form a Political Party under Article 17(2) of the Constitution.
Mr. S.M. War also contended that the fact that Assembly could be
dissolved, at any time during its tenure at the advice of Prime Minister, shows
that the members of National Assembly cannot claim any vested right in respect
of rive years’ tenure of the Assembly prescribed under the Constitution. The
argument of the learned counsel is not of much relevance. The right to continue
as member of National Assembly for a period of five years is subject to other
provisions of the Constitution including those relating to its dissolution.
Therefore, if the Assembly is dissolved validly in accordance with the
provisions of the Constitution, no vested right could be claimed against such
an action. The right to continue as member of the Assembly would only arise
when the dissolution takes place contrary to the provisions of the
constitution. The dissolution of Assembly on the advice of Prime Minister is
specifically provided for in the Constitution, and as such no question of
Fundamental Right of any member of the Assembly being infringed by such
dissolution arises. Secondly, the Prime Minister as leader of the House and as
head of the Government, represents the will of the majority of the members of
the National Assembly. When the Prime Minister advises dissolution of
Assembly, he in fact reflects the will of the majority of the members of the H
Assembly. Therefore, in such a situation the minority cannot prevent
dissolution on the ground of violation of their rights as the National Assembly
without majority of its members will otherwise become unrepresentative.
Mr. Khalid Anwar, the learned counsel for the petitioner has also
contended that the ‘political justice’ as enshrined in Article 2A of the
Constitution is declared as a fundamental right, therefore, on this score too
the petitioner, whose political rights have been infringed by the impugned
action, is entitled to maintain the petition under Article 184(3) of the
Constitution. It is not necessary to decide here this contention of Mr. Khalid
Anwar, in view of my above findings that the right to form a Political Party
mentioned under Article 17(2) of the
Constitution necessarily implies the right of a I it Party duly voted to power
in an election, to continue as such, in accordance with the provisions of the
Constitution.
. I am, therefore, of the view that if the petitioner, who was heading
the Government of the Federation, formed by a Political Party, on the. basis of
its majority in the National Assembly, succeeds in showing that his right to
continue in the Government was disrupted or discontinued illegally and through unconstitutional means, he can
legitimately make a grievance about violation of his fundamental rights
guaranteed under Article 17(2) (supra) and can also maintain the petition under
Article 184(3) of the Constitution before this Court to challenge the impugned
action. It may be stated here that both, the learned Attorney‑General and
the counsel for respondent No .3, conceded before us that the issues involved
in the above petition are certainly of great public importance. The petitioner
has specifically alleged, in his petition, that his majority Government was
dismissed and the National Assembly was dissolved by the President on 18‑4‑1993
illegally and unconstitutionally. If these allegations are established, the
petition will be maintainable under Article 184(3) of the Constitution in view
of the preceding discussion.
I now proceed to examine the validity of the Order of the President,
dated 18‑4‑1993, dissolving the National Assembly and dismissing
the Prime Minister and the Federal Cabinet. It reads as follows:‑‑‑
“The President having considered the situation in the country, the
events that have taken place and the circumstances, the contents and
consequences of the Prime Minister’s speech on 17th April, 1993 and among
others for the reasons mentioned below is of the opinion that the Government of
the Federation cannot be carried on in accordance with the provisions of the
Constitution and an appeal to the electorate is necessary:‑‑‑
(a) The mass resignation of
the members of the Opposition and of considerable
numbers from the Treasury Benches, including several Ministers, inter alia, showing their desire to seek fresh
mandate from the people have
resulted in the Government of the Federation and the National Assembly losing
the confidence of the people, and that the dissension
therein, has nullified its mandate.
(b) The Prime
Minister held meetings with the President in March and April and the last on
14th April, 1993 when the President urged him to take positive steps to resolve
the grave internal and international problems confronting the country and the
nation was anxiously looking forward to the announcement of concrete measures
by the Government to improve the situation. Instead, the Prime Minister in his
speech on 17th April, 1993 chose to divert the people’s attention by making
false * and malicious allegations against the President of Pakistan who is Head
of State and represents the unity of the Republic. The tenor of the speech was
that the Government could not be carried on in accordance with the provisions
of the Constitution and he advanced his own reasons and theory for the same
which reasons and theory, in fact, are unwarranted and misleading. The Prime
Minister tried to cover up the failures and defaults of the Government although he was repeatedly apprised of
the real reasons in this behalf, which he even accepted and agreed to rectify
by specific measures on urgent basis. Further, the Prime Minister’s speech is
tantamount to a call for agitation and in any case the speech and his conduct
amounts to subversion of the Constitution.
(c) Under the Constitution
the Federation and the Provinces are required to exercise their executive and
legislative authority as demarcated and defined and there are specific
provisions and institutions to ensure its working in the interests of the
integrity, sovereignty, solidarity and well‑being of the Federation and
to protect the autonomy granted to the Provinces by creating specific
Constitutional institutions consisting of Federal and Provincial
representatives, but the Government of the Federation has failed to uphold and
protect these, as required, in that, inter alia:
(i) The Council of Common
Interests under Article 153 ‘which is responsible only to Parliament has not
discharged its Constitutional functions to exercise its powers as required by
Articles 153 and 154, and in relation to Article 161, and particularly in the
context of privatisation of industries in relation to item 3 of Part 11 of the
Federal Legislative List and item 34,of the Concurrent Legislative List.
(ii) The National Economic
Council under Article 156, and its Executive Committee, has been largely
bypassed, inter alia, in the formulation of plans in respect of financial,
commercial, social and economic policies.
(iii) Constitutional powers,
rights and functions of the Provinces have been usurped, frustrated and
interfered with in violation of inter alia Article 97.,
(d) Mal-administration,
corruption and nepotism have reached such proportions in the Federal
Government, its various bodies, authorities and other corporations including
banks supervised and controlled by the Federal Government, the lack of
transparency in the process of privatisation and in the disposal of
public/Government properties, that they violate the requirements of the
Oath(s) of the public representatives together with the Prime Minister, the
Ministers and Ministers of State prescribed in the Constitution and prevent the
Government from functioning in accordance with the provisions of the
Constitution.
(e) The functionaries,
authorities and agencies of the Government under the direction, control,
collaboration and patronage of the Prime Minister and Ministers have unleashed
a reign of terror against the opponents of the Government including political
and personal rivals/relatives, and media men, thus creating a situation wherein
the Government cannot be carried on in accordance with the provisions of the
Constitution and the law.
(f) In violation of the provisions of‑the Constitution:‑‑‑
(i) The Cabinet has not
been taken into confidence or decided upon
numerous Ordinances
and matters of policy.
(ii) Federal Ministers have
for a period even been called upon not to see
the President.
(iii) Resources and agencies
of the Government of the Federation, including statutory corporations,
authorities and banks, have been misused for political ends and purposes and
for personal gain.
(iv) There has been massive
wastage and dissipation of public funds and assets at the cost of the national
exchequer without legal or valid justification resulting in increased deficit
financing and indebtedness, both domestic and international, and adversely
affecting the national interest including defence.
(v) Articles 240 and 242
have been disregarded in respect of the Civil Services
of Pakistan.
(g) The serious allegations
made by Beguin Nuzhat Asif Nawaz as to the highhanded treatment meted out to
her husband, the late Army Chief of Staff, and the further allegations as to
the circumstances culminating in his death indicate that the highest
functionaries of the Federal Government have been subverting the authority of
the Armed Forces and the machinery of the Government and the Constitution itself.
(h) The Government of the
Federation for the above reasons, inter alia, is not in a position to meet
properly and positively the threat to the security and integrity of Pakistan
and the grave economic situation confronting the country, necessitating the
requirement of a fresh mandate from the people of Pakistan.
2. Now therefore 1, Ghulam
Ishaq Khan, President of Islamic Republic of Pakistan in exercise of the powers
conferred on me by clause (2)(b) of Article 58 of the Constitution of the
Islamic Republic of Pakistan and all other powers enabling me, hereby dissolve
the National Assembly with immediate effect; and dismiss the Prime Minister and
the Cabinet who shall cease to hold office forthwith.”
Mr. Khalid Anwar, the learned counsel for the petitioner, contended
before us that none of the grounds mentioned in the above order of the
President bears any nexus to the preconditions mentioned in Article 58(2)(b) of
the Constitution, for exercise of the power by the President to dissolve the
National Assembly. The learned counsel argued that the petitioner throughout
the tenure of the office of Prime Minister enjoyed full confidence and support
of the majority of the members of the National Assembly, and the conditions
prevailing on 18‑4‑1993 when the Assembly was dissolved by the
President, were not such that it could be said by any process of reasoning that
the Government of Federation could not be carried on in accordance with the
Constitution and an appeal to the electorate was necessary. Mr. Khalid Anwar
contended that the two objective conditions mentioned in Article 58(2)(b) of
the Constitution which were sine qua non for exercise of power by the President
under Article 58(2)(b) (supra), were totally wanting in the present case and as
such the dissolution order cannot be justified on Constitutional plane. The
learned counsel further contended that the Constitution envisages a system of
Government based on the concept of Parliamentary democracy in which the Prime
Minister is answerable to the Parliament alone, and as such, the President
while exercising his powers under Article 58(2)(b) of the Constitution could
not rely on any shortcomings in the working of the Government of the
petitioner, as a ground for dissolving the National Assembly. Mr. Khalid Anwar
contended that in discharge of all his executive functions under the
Constitution, except those in respect whereof the Constitution specifically
authorises him to act in his discretion, the President’ is bound to act on the
advice of Prime Minister or the Cabinet. This fact according to Mr. Khalid
Anwar, fully demonstrates that in matters of policymaking and day to day
administration of the Government, the Prime Minister is neither answerable to
President nor he acts as a subordinate of the President. Mr. Khalid Anwar
further contended that the order passed by the President, on 18‑4‑1993,
is unconstitutional and mala ride on its face, as the President had no power to
dissolve the Assembly when its session was summoned by the. Speaker. Relying on
Article 54(3) of the Constitution, the learned counsel contended that when a
session of National Assembly is summoned by the Speaker on the requisition of
1/4th of its members, he alone under the
Constitution is competent to prorogue such a session of the Assembly. The
learned counsel, accordingly, contended that the President by its pre‑emptive
order of dissolution of National Assembly in fact usurped the exclusive power
of Speaker under Article 54(3) (supra). According to Mr. Khalid Anwar, the
power to dissolve the National Assembly under Article 58(2)(b) (supra) became
dormant as soon as the Session of the National Assembly was summoned by the
Speaker and this power could only be exercised by the President after the
requisitioned session of the Assembly was prorogued by the Speaker. Mr. Khalid
Anwar further contended that even otherwise the grounds mentioned in the order
of dissolution were untenable and an afterthought as the President as late as
22‑12‑1992, in his speech delivered on the occasion of the first
session of the year of the Parliament had praised the performance of the
Government of the petitioner in all the fields. Mr. Khalid Anwar referred in
detail to the events and development in the country during the three months
period prior to the dissolution of Assembly both with the help of Newspaper
reports and other material on record before us, and contended that in the back
drop of these events when the petitioner met with the President on 14‑4‑1993,
the irritants were removed. In this connection the learned counsel referred to
the Press Release issued by the President’s Secretariat on the same day as well
as the draft communique prepared by the Prime Minister’s ‘Secretariat, produced
in Court by respondents, and contended that there is no indication in these
documents that any deadlock or stalemate had arisen which rendered the working
of the Federal Government in accordance with the Constitution impossible. On
the contrary, according to Mr. Khalid Anwar, these documents clearly show that
the outstanding issues were satisfactorily resolved and the petitioner had
assured the President to implement the decision taken in the meeting held on 14‑4‑1993
in due course of time. Mr. Khalid Anwar further contended that even otherwise,
the extreme action of dissolution of Assembly was totally uncalled for, As the
shortcomings pointed out in the dissolution order could be remedied by resort
to various Constitutional options available to President under the Scheme of
the Constitution. On the above premises, Mr. Khalid Anwar contended that the
order of dissolution of ‑Assembly was wholly uncalled for,
unconstitutional, arbitrary and based on extraneous reasons.
Mr. Yahya Bakhtiar, the senior counsel of the petitioner, supporting
the arguments of Mr. Khalid Anwar, contended that the President of Pakistan,
not being a directly elected person, is neither answerable to the Parliament
nor to the people, under the Constitution. Such a Constitutional figure head,
according to him, cannot claim supremacy over the Prime Minister, who is
directly elected by the people and is answerable to Parliament for all his
acts. The learned counsel also made a collateral attack on the
constitutionality of 8th Amendment in the Constitution as well as the
appointment of the President, who according to learned counsel, having been
elected as President for the un expired period of the term of the office of
President mentioned in clause 7 of Article 41 of the Constitution, has ceased
to be the President on the expiry of that period.
Dr. Farooq Hassan, another learned counsel for one of the petitioners
in the above cases, contended that President of Pakistan under the Constitution
has a very limited role to play. According to Dr. Hassan, the President, in the
scheme of Constitution, cannot impose his will on the Prime Minister, in so far
the working of the Government is concerned. By reference to various provisions
of the Constitution, the learned counsel contended that in all matters of
administration of State, the President is bound by the advice of the Prime
Minister and not the vice versa. The learned counsel also referred to the
grounds of dissolution mentioned in the order dated 18‑4‑1993, and
contended that there is nothing in the above order to indicate that the
Assembly had lost its mandate or that the working of the National Assembly was
such that it no more represented the will of the electorate.
In reply to the above
contentions of the petitioners, Mr. Aziz A. Munshi, the learned Attorney‑General,
contended that President dissolved the National Assembly on 18‑4‑1993,
in exercise of his discretion under Article 58(2)(b) of the Constitution and
this discretion vesting in the President under the Constitution is not subject
to any supervisory control of the Courts.
The Courts, according to the learned Attorney‑General in exercise
of their power of judicial review, as laid down in the cases of Federation of
Pakistan v. Haji Saifullah PLD 1989 SC 166 which was reiterated, with approval,
in the case of Khawaja Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646,
are only entitled to examine that the grounds of dissolution mentioned by the
President in his order bear some nexus to the conditions prescribed under
Article 58(2)(b) (supra) and that there was some material available before the President
in support of the grounds mentioned in the dissolution order. The learned
Attorney‑General went on to argue that when once the President had formed
the opinion on the basis‑ of the material before him, that a situation
had arisen, in which the Federal Government could not be carried on in
accordance with the provisions of the Constitution and an appeal to the
electorate is necessary, he entered the domain of his discretion under Article
58(2)(b) (supra) which could not be controlled or circumscribed by the
existence of any other alternative course or remedy under the Constitution. The
learned Attorney‑General referred to the voluminous file ‘ s produced
before us, containing mostly the press reports and some letters and
correspondence exchanged between the President’s Secretariat and Prime Minister’s
Secretariat, in an attempt to show that the grounds mentioned in the
dissolution order not only bore nexus to the conditions prescribed under
Article 58(2)(b) (supra) but that there was enough material before the
President in support of the grounds mentioned in the dissolution order.
Replying to the contention of the petitioner that in every case where the
President exercises his power under Article 58(2)(b) of the Constitution, the
existence of two distinct and separate conditions, namely, (i) that a situation
has arisen in which the Government of Federation cannot be carried on in
accordance with the provisions of the Constitution, and that (a) an appeal to
electorate is necessary, are sine qua non for exercise of such power by the
President, the learned Attorney‑General contended, that both these
conditions in effect are one and the same and in other words one is the
corollary of the other. In the alternative, the learned Attorney‑General
contended that even if the Court considers that both these conditions must be
satisfied as distinct and separate jurisdictional requirement, before power was
exercised by the President under Article 58(2)(b) of the Constitution, they
were fully complied with in the present case, as besides the deadlock and
stalemate created in the functioning of the Government on account of acts of
commission and omission of the petitioner, the Assembly had also lost its
representative character as an elected body on account of mass resignations of
members of the National Assembly. The learned Attorney‑General very
vehemently argued that apart from the facts stated in the dissolution order,
the speech of Prime Minister delivered on the electronic media on 17‑4‑1993,
itself amounted to a complete deadlock and a stalemate, as after the above
speech in which the petitioner described the President as a conspirator and a
person responsible for destabilising his Government, it could not be expected
that the President would be able to discharge his Constitutional role qua the
Government of the petitioner. This fact alone, according to learned Attorney‑General,
was sufficient for the President to conclude that a situation has arisen is
which the Federal Government could not be carried on in accordance with the
provisions of the Constitution. Elaborating his above submission, the learned
Attorney General contended that the President, in his capacity as the Head of
the State and representing the unity of Federation, has the Constitutional
right to advise, warn and be consulted in the running and management of the
affairs of the Federal Government. According to learned Attorney‑General,
this advisory and consultative role of the President under the Constitution
could not be performed effectively after the speech of Prime Minister, dated 17‑4‑1993.
The learned Attorney‑General repeatedly argued that the speech of Prime
Minister on 17‑4‑1993, amounted to an act of defamation against the
President, which besides being actionable under ordinary law amounted to
subversion of the Constitution. These circumstances, according to learned
Attorney‑General, presented a state of Constitutional impasse leading to
a complete deadlock and stalemate in the working of the Government of
Federation, leaving no other option with the President except to dissolve the
National Assembly and make a fresh appeal to the electorate in accordance with
Article 58(2)(b) (supra).
Mr. S.M. Zafar, the learned counsel for the Care‑taker Prime
Minister while supporting the above stand of learned Attorney‑General in
the case, contended that the dissolution
of an elected Assembly is. part of a democratic process in a parliamentary
system of Government. The learned counsel quoted from the Book ‘The Theory of
Practice of Dissolution of Parliament” by B.S. ‘Markesinis, a Cambridge
University Publication (1972. Edition), a tabulated statement showing
dissolution of Assemblies during the past over 100 years in the United Kingdom
and other countries of the Continent, in a bid to demonstrate that frequent
dissolution of elected Assemblies is not
an unusual phenomena but a normal feature and a part of Parliamentary
democratic polity. Referring to the contention of the petitioner that once a
session of the National Assembly was called by the Speaker on the requisition
of its members, the power of President became dormant and could not be
exercised until the session was prorogued by the Speaker, Mr. S.M. Zafar
contended that no such limitation could be read on the power of President under
Article 58(2)(b) of the Constitution on account of summoning of the session of
National Assembly by the Speaker under Article 54(3) of the Constitution. The
learned counsel contended that the power to summon and prorogue the Assembly is
distinct and separate from the power of the President to dissolve the Assembly
and the latter power is not controlled by the former. Dealing with the concept
of power of President and Prime Minister, in a strict parliamentary democracy,
Mr. S.M. Zafar contended that though the concept of Government in our
Constitutional scheme may be nearer in spirit to the West minister’s
Parliamentary form but in a stricter sense it is not a parliamentary democracy
out and out, as in a parliamentary democracy, the President is only a
ceremonial head and all powers of the Government are exercised by the Prime
Minister who is answerable to Parliament alone. The learned counsel contended
that the President, under our Constitutional scheme is authorised to exercise
power over a substantially large executive domain. According to learned counsel
the powers exercised by the President under the Constitution in executive field
can be divided in four categories, namely:‑‑ (i) President acting
on the advice of Prime Minister; ‘(ii) President acting in his discretion; (iii)
President acting in consultation with Prime Minister and (iv) President acting
as a head of State in his representative capacity. According to the learned
counsel the exercise of such large number of powers by the President in
executive riled, makes him a potent force under the Constitution in
contradistinction to a mere ceremonial Head of State in a parliamentary system
of Government. Taking further this argument, Mr. S.M. Zafar contended that in a
Constitutional arrangement where the President is entitled to exercise power in
such a large executive domain alongside the Prime Minister, it is necessary.
that the holders of these two top offices in the Federation must work in
harmony and cohesion. Otherwise, a deadlock or a stalemate in the working of the
Government would be inevitable. In the above context of division of power
between President and Prime Minister under the Constitution the learn counsel
contended that the speech of Prime Minister on television on 17‑4‑1993
did create a climate of deadlock and stalemate justifying dissolution of
National Assembly. Referring to various grounds of dissolution mentioned in the
order of President, dated 18‑4‑1993, Mr. S.M. Zafar contended that
the fact that the entire Opposition alongwith some members of the ruling party,
had tendered their resignations en bloc from the membership of the Assembly did
support the conclusion that the Assembly had lost its representative character
and as such the dissolution of National Assembly by the President was fully
justified under Article 58(2)(b)’of the Constitution.
The learned Advocates‑
‘ General of Punjab, Sindh, Frontier and Balochistan adopted the arguments of
learned Attorney‑General and further contended that the Federal
Government under the petitioner continued to ignore the rights of the
Provincial Governments which led to a sense of
deprivation amongst the Federating Units. In this connection, they
referred to the protests lodged by respective Provincial Governments, from time
to time, with the Prime Minister and the President in order to show that the
Federal Government bypassed the Constitutional provisions in dealing with the
rights of the Provinces.
Before I take up each ground of the Dissolution Order, dated 18th
April, 1993, separately for consideration, it will be appropriate to first
answer some of the Constitutional issues raised at the Bar in the above
petitions. The first and the most vital question argued in these cases relates
to the parameters within which power to dissolve the National Assembly can be
exercised by the President under Article 58(2)(b) of the Constitution. This
question has been. directly answered in two reported decisions of this Court in
the cases of Federation of Pakistan v. Haji Saifullah Khan P L D 1989 SC 166
and Khawaja Ahmed Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646. The
broad I principles laid down in the above two cases governing exercise of power
by the President under Article 58(2)(b) of the Constitution, may be summed up
as follows:‑‑‑
(I) The President, before
exercising the power under Article 58 (2)(b) of the Constitution must form an
opinion objectively that a situation has arisen in which the Government of
Federation cannot be carried on in accordance with the provisions of the
Constitution and an appeal to! the electorate is necessary;
(ii) that although the
exercise of discretion vesting in the President under Article 58 (2)(b) of the
Constitution is not subject to control by the Courts, the opinion of the
President must satisfy an objective test as’ nothing has been left to surmises,
likes or ‑dislikes in the process of opinion forming;
(iii) that the grounds of dissolution must bear nexus to the
preconditions mentioned in Article
58(2)(b) of the Constitution;
(iv) that the opinion formed
by the President must be based on some material;,
(v) that sufficiency or otherwise of the material before the
President cannot be adjudicated upon by the Court while considering the
validity of dissolution order passed under Article 58(2)(b) of the Constitution;
(vi) That the
Courts while commenting upon the Dissolution Order cannot substitute their own
opinion for that of the President; and
(vii) That the President having once validly formed the opinion that
conditions prescribed in Article 58(2)(b) of the Constitution exist, is free to
exercise the discretion one way or the other and existence of other alternate
remedy in the Constitution could not control exercise of such discretion by the
President.
On the scope of Article 58(2)(b) of the Constitution, Mr. Khalid Anwar,
however, contended that the President can exercise power under this Article,
only when he forms the opinion objectively that the two distinct and separate
conditions mentioned in Article 58(2)(b) (supra), namely, (i) that a situation
has arisen in which the Government of Federation cannot be carried on in
accordance with the provisions of the Constitution and that; (ii) an appeal to
the electorate is necessary, exist side by side. The learned counsel argued
that the existence of circumstances in a case, justifying an inference that, a
situation has arisen in which the Government of Federation cannot be run in
accordance with the Constitution does not necessarily lead to the conclusion
that the second condition mentioned in Article 58(2)(b) (supra), that an appeal
to the electorate is necessary, also stands satisfied in the case. The learned
counsel argued that existence of different facts and circumstances may be
necessary to establish these two distinct and separate conditions. The learned
counsel further contended that apart from it, an appeal to electorate may not
always provide an effective solution to the situation which gives rise to an
inference that the Government of Federation cannot be carried on in accordance
with the provisions of the Constitution. The learned counsel specifically
referred to the contention of learned Attorney‑General in the present
case and argued that according to learned Attorney‑General the alleged
deadlock and stalemate in running the Government of Federation has arisen on
account of the speech of Prime Minister delivered on 17th April, 1993 and posed
a question whether an appeal to electorate (fresh election to National
Assembly) will provide a solution to this stalemate when admittedly the contest
in the election will be confined between the political parties taking part in
the election and there being no possibility of this alleged stalemate between
the petitioner and the President forming part of the election issue before the
electorate?
Mr. Aziz A. Munshi, the learned Attorney‑General, in reply to the
above arguments of Mr. Khalid Anwar contended that the second condition
mentioned in Article 58(2)(b) (supra), that an appeal to the electorate is
necessary, is merely a corollary of the first condition, that a situation has
arisen in which the Government of Federation cannot be run in accordance with
the provisions of the Constitution. According to learned Attorney‑General
as soon as it is shown that the first condition mentioned in Article 58(2)(b)
has arisen, the second will automatically follow. Alternatively, the learned
Attorney General contended that in so far the present case is concerned this
argument does not arise as both the conditions mentioned in Article 5b(2)(b)
(supra) were fully satisfied. According to learned Attorney‑General, the
inference by the President that the Government of Federation could not be
carried on in accordance with the provisions of the Constitution was based on
various acts of commission and omission of the petitioner mentioned in the
Dissolution Order and the National Assembly having lost its representative
character on account of mass resignations of its members, an appeal to
electorate was necessary. I may mention here that the argument regarding the
scope of Article 58(2)(b) (supra) was not presented in this manner before this
Court in the cases of Haji Saifullah and Khawaja Tariq Raheem (supra) and,
therefore, the decision in those cases may not provide a complete answer to the
contentions raised above at the Bar in the present case. I, therefore, feel it
necessary to deal with the above contention in the manner it is raised before
us in this case. Article 58(2)(b) of the Constitution reads as under:‑‑‑
“58 ......
(2) Notwithstanding
anything ‘contained ,in clause (2) of Article 48, the President may also
dissolve the National Assembly in his discretion where, in his opinion,‑‑
(a) a vote of no‑confidence
having been passed against the Prime Minister, no other member of the National
Assembly is likely t6~ command the confidence of the majority of the members of
the National Assembly in accordance with the provisions of the Constitution.
ascertained in a session of the National Assembly summoned for the purpose; or
(b) a situation has arisen
in which the Government of the Federation cannot be carried on in accordance
with the provisions of the Constitution and an appeal to the electorate is
necessary.”
The use of conjunction “and” in between the expressions “a situation
has arisen in which the Government of Federation cannot be carried on in
accordance with the provisions of the Constitution” and “an appeal to
electorate is necessary” in. Article 58(2)(b) of the Constitution, clearly
indicates that the latter condition is to be added to or taken alongwith the
first condition. It has not been argued before us in the case that ‘and’ is to
be read as ‘or’ in Article 58(2) (b) or that ‘and’ is used iii any other sense.
To me it appears that land’ is used in Article 58(2) (b) (supra) in its
ordinary grammatical meaning. I am, therefore, of the view that the above‑referred
two conditions in Article 58(2)(b) of the Constitution are distinct and
separate conditions and their existence as such in a case is a sine qua non for
exercise of power by the President to dissolve the National Assembly. What are
those facts and circumstances which justify an inference that these two
objective conditions mentioned in Article 58(2)(b) (supra) have been satisfied,
must be answered with reference to the facts and circumstances of each case,
and no hard and fast rule in this regard can be laid down by the Courts? This
Court in the case of Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989
SC 166 interpreted the expression, “the Government of Federation cannot be run
in accordance with the provisions of the Constitution”, as follows:‑‑‑
“The expression ‘cannot be carried on’ sandwiched as it is between ‘Federal
Government’ and “in accordance with the provisions of the Constitution H ,
acquires, a very potent, ‘a very positive and a very concrete content. Nothing
has been left to surmises, likes or dislikes, opinion or view. It does not
concern itself with the pace of the progress, the shade of the quality or the
degree of the performance or the quantum of the achievement. It concerns itself
with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in
ensuring the observance ‑of the provisions of the Constitution. The
historical perspective in which such a provision found a place in our
Constitution reinforces this interpretation.”
In the case of Khawaja Ahmed Tariq Rahim, v. Federation of Pakistan PLD
1992 SC 646, this Court while re‑affirming the view expressed in Haji
Saifullah’s case, observed as follows:‑‑‑
“This much for the background of the Constitutional power, its scope
and meaning in the past and in the contemporary decisions outside Pakistan. In
Haji Muhammad Saifullah Khan’s case PLD 1989 SC 166 our Constitutional
provision has received full attention and its meaning and scope authoritatively
explained and determined. It is an extreme power to be exercised where there is
an actual or imminent breakdown of the Constitutional machinery, as
distinguished from a failure to observe a particular provision of the
Constitution. There may be occasion for the exercise of this power where there
takes place extensive, continued and pervasive failure to observe not one but
numerous provisions of the Constitution, creating the impression that the
country is governed not so much by the Constitution but by methods extra‑Constitutional.”
From the above discussion it would appear that the expression, “the
Government of Federation cannot be carried on in accordance with the
provisions of the Constitution” in Article 58(2)(b) (supra) contemplates a
situation where the affairs of the Government are not capable of being run in
accordance with the provisions of the Constitution either on account oil
persistent, deliberate and continued violation of various provisions of the
Constitution by the Government in power, or on account of some defect in the
structure of the Government, its functioning in accordance with the provisions
of the Constitution is ‑rendered impossible. The use of expression “Cannot
be carried on” necessarily imports an element of impossibility and
disability and refers to a irretrievable and irreversible situation. An
unintentional and bona fide omission to follow a particular provision of the
Constitution, not resulting in the breakdown of Government machine‑y or
creating a situation of a stalemate or deadlock in the working of the
Government, will not be covered in the situations contemplated under Article
58(2)(b) of the Constitution.
Similarly, the use of expression in Article 58(2)(b) (supra) that “an
appeal to electorate is necessary’, implies that the Assembly has lost its
representative character. This may happen where either majority of its members
have resigned or where floor‑crossing and ‘horse‑trading’ by the
members of the Assembly has become the order of the day, or there are other
very strong circumstances suggesting that the electorate no more reposed
confidence in the policies of the Government. The examples, referred by me
above are, however, by no means exhaustive and there may be other facts and
circumstances which may justify inference ‘that a situation has arisen in which
the Government of Federation cannot be carried on in accordance with the
provisions of the Constitution and an appeal to the electorate is necessary.
1, therefore, do not agree with
the contention of learned Attorney General that the two objective conditions
mentioned in Article 58(2)(b) of the Constitution are in effect one and the
same, and where it is shown that the first N condition, that a situation has
arisen in which the Government of Federation’ cannot be run in accordance with
the provisions of the Constitution, exists in a case, the second condition,
that an appeal to the electorate is necessary, will follow as a corollary of
the first condition.
The second Constitutional argument raised in the case by Mr. Khalid
Anwar is, that once the session of National Assembly is summoned by the Speaker
on the requisition of its members then such a session could only be prorogued
by the Speaker. The learned counsel further contended that the preemptive
dissolution of National Assembly by the President to prevent the holding of
such a session of the Assembly was illegal and unconstitutional as the power to
dissolve the Assembly under Article 58(2)(b) (supra) by the President could not
be exercised unless the Speaker prorogued the session of National Assembly
summoned by him. The contention of the learned counsel for the petitioner does
not appear to be correct. Mr. S.M. Zafar, the learned counsel for the Care‑taker
Prime Minister rightly pointed out that the power to prorogue the session of
Assembly is distinct from the power to dissolve the Assembly. The power to
summon and prorogue the session of the Assembly and power to dissolve the
Assembly are conferred by Articles 54 and 58 of the Constitution, respectively.
Articles 54 and 58 of the Constitution read as follows:‑‑‑
“54.‑‑(1) The President may, from time to time, summon
either House or both Houses of Majlis‑e‑Shoora (Parliament) in
joint sitting to meet at such time and place as he thinks fit and may also
prorogue the same.
(2) There shall be at least. (three) sessions of the National Assembly
every year, and not more than one hundred and twenty days shall intervene
between the last sitting of the Assembly in one session and the date appointed
for its first sitting in the next session:
Provided that the National Assembly shall meet for not less than one
hundred and (thirty) working days in each year.
Explanation. ‑‑‑In this clause, ‘working days’
includes any day on which there is a joint sitting and any period, not
exceeding two days for which the National Assembly is adjourned.)
A
(3) On a requisition signed
by not less than one‑fourth of the total membership of the National
Assembly, the Speaker shall summon the National Assembly to meet, at such time
and place as he thinks fit, within fourteen days of the receipt of the
requisition; and when the Speaker has summoned the Assembly only he may
prorogue it.”
58.‑‑(l) The President shall dissolve the National Assembly
if so advised by the Prime Minister; and the National Assembly shall, unless
sooner dissolved, stand dissolved at the expiration of forty‑eight hours
after the Prime Minister has so advised.
Explanation. ‑‑‑Reference in this Article to ‘Prime Minister’ shall not
be construed to include reference to a Prime Minister against whom a (notice of
a resolution for a vote of no‑confidence has been given) in the National
Assembly but has not been voted upon or against whom such a resolution has been
passed or who is continuing in office after his resignation or after the
dissolution of the National Assembly .................
(2) Notwithstanding
anything contained in clause (2) of Article 48, the President may also dissolve
the National Assembly in his discretion where, in his opinion,‑‑‑
(a) a vote of no‑confidence having been passed against the Prime
Minister, no other member of the National Assembly is likely to command the
confidence of the majority of the members of the National Assembly in
accordance with the provisions of the Constitution ascertained in a session of
the National Assembly summoned for the purpose; or
‘(b) a situation
has arisen in which the Government of the Federation cannot be carried on in
accordance with the provisions of the
Constitution and an appeal to. the electorate is necessary.”
From the language of
the above mentioned Articles of Constitution, it is quite clear that they
operate in different fields and cater for different and distinct situations.
Article 54 pro ‘ vides for summoning of the sessions of National Assembly and
power to prorogue its session. Under clause (1) of Article 54, the President is
vested with the power to summon the session of National Assembly from time to
time and to prorogue the same, on the advice of Prime Minister. The Speaker is’
also distinctly conferred the power under clause (3) of Article 54 to call for
the session of National Assembly when requested through a requisition signed by
one‑fourth of the total number of the members of National Assembly. The
session summoned by the Speaker under
Article 54(3) cannot be prorogued by any person other than the Speaker.
Article 58(l) on the other hand provides for dissolution. of Assembly by the
President, on the advice of Prime Minister. The President under Article
58(2)(a) can also dissolve the National Assembly in his discretion, if a vote
of no‑confidence is passed against the Prime Minister and President
ascertains in the session of National ‘ Assembly called for that purpose, that
no other member of the National Assembly is likely to command the confidence of
the majority of the members of National Assembly. The President is also
empowered to dissolve the National Assembly in his discretion, under Article
58(2)(b) (supra) if he objectively forms the opinion, that a situation has
arisen in which the Government of Federation cannot be run in accordance with
the provisions of the Constitution and an appeal to the electorate is
necessary. The scope of power enjoyed by the Speaker of National Assembly to
prorogue the session of National Assembly summoned by him under Article 54(3)
of the Constitution is, therefore, to be examined and understood in the context
of powers enjoyed by the President and the Speaker respectively, to prorogue
the sessions of National Assembly under Article 54 of the Constitution, and
nothing beyond that. The exclusive power enjoyed by the Speaker to prorogue the
session of National Assembly summoned by him under Article 54 (3) is not at all
determinative of the power of the President to dissolve the Assembly under
Article 58 of the Constitution. The power to dissolve the National Assembly
under Article 58(2)(b) is undoubtedly a distinct and separate Constitutional
power which is neither subordinate to nor controlled by the provisions of
Article 54 of the Constitution. There is nothing in the language of Article 54
or Article 58 or in any other provision of the Constitution to suggest or
indicate that when a session of the National Assembly in summoned either by the
President himself.(Article 54(1)) or by the Speaker (Article 54(3)), the power
to dissolve the National Assembly will not be exercised by the President under
Article 58 of the Constitution or that the power of President to dissolve the
National Assembly will remain suspended or dormant until the session of the
National Assembly summoned under Article 54 is prorogued. The power to dissolve
the Assembly under Article 58 of the Constitution is an independent and
distinct power which can be exercised at any time after the Assembly is
formally opened. The fact that Assembly I is in session or that its session has
been called or that it is not in session has no bearing on the exercise of the
power of dissolution under Article S8 of the Constitution.
I have dealt with various Constitutional issues raised at the Bar in
the above case and now revert to the Presidential Order, dated 18‑4‑1993,
to consider on merit, the grounds mentioned therein individually. The first
ground in the Dissolution Order relates to the alleged mass resignation of the
members of Opposition. in National Assembly and some members of the Treasury
Benches. Copies of these resignations have been filed before. us by the
respondents. The contention of the petitioner with regard to these resignations
is that these resignations have no value in the eye of law as they were not
tendered as required by the Constitution. It is further contended by the
petitioner that these so‑called resignations were obtained by the
President in an attempt to destabilise the Government of petitioner by
encouraging and supporting’ the elements hostile to’ the petitioner’s
Government. The respondents in their written statement riled in the case have taken the following stand with
regard to these resignations:‑‑‑
“3(iii) Contents of para. 3 (iii are misleading and incorrect.
it is submitted that it is for the members of the National Assembly to
select the mode of showing their protest and lack of confidence in the
petitioner’s Government, National Assembly and the Speaker whether in or
outside the House. In the instant case they have addressed their resignations
(Annex. *A‑1) to the Speaker of the National Assembly, but sent them to
the President to register with the Head of the State their protest and as an
expression of lack of confidence in the National Assembly, the Speaker and the
Federal Government. The further reason was that the Speaker had not in the past
acted upon any motion directed against the Prime Minister/or any other Minister
or member of the National Assembly supporting the Government or the Government
itself and,. as widely known, the concerned members had shown lack of
confidence in the Speaker, who according to the general perception was in
collusion with the former Prime Minister
and was not acting independently.
The resignations produced before us are to be considered in the wake of
events which preceded the dissolution of National Assembly on 18‑4‑1993.
Both sides have filed large number of press cuttings and relied on them to show
the prevailing political climate in the country during pre‑dissolution
period. It is true that press reports are not to be accepted as proof of facts
stated therein but where such reports were not contradicted by the concerned
authority or person at the relevant time and are subsequently relied by either
side in a case, these may be taken into consideration for forming an opinion
generally as to‑the prevailing state of affairs at the relevant time. The
pr reports for the period immediately preceding the dissolution of National
Assembly do show, that elements hostile to petitioner’s Government were being
entertained regularly at the President’s House and after their meeting at the
Presidency these elements gave the impression that the petitioner’s Government
was going to be dissolved very soon. In this background, receipt of these
resignations, addressed to the Speaker of National Assembly, by the President
and not forwarding them to the Speaker, even after passage of considerable time
appears not only an unusual course but also lends support to the contentions of
the petitioner that these resignations were not given to the President by the
members of National Assembly with a genuine desire to vacate their seats in the
National Assembly but only to provide a leverage for bargaining with the
petitioner and for destabilising; the Government of petitioner. This conclusion
is further supported by the above‑quoted passage from the written
statement of respondents in the case and the fact that a good number out of
these persons ‑.who allegedly handed over their so‑called
resignations to the President, found their way in the Care‑taker Cabinet
appointed by the President immediately after the dissolution of National
Assembly. Apart from it, the value of these resignations has to be examined
first under the Constitution. Article 64 of the Constitution provides that a
member of Parliament may by writing under his hand addressed to the Speaker or
as the case may be, to the Chairman ,resign his seat and thereupon his seat
shall become vacant. Article 64 of the Constitution is to be read with Rule 25
of the Rules of Procedure and Conduct of Business in the National Assembly, 11
1.992 which is as follows:‑‑‑
“25. Resignation of seat.‑‑(1)
A member may, by writing under his hand addressed
to the Speaker, resign his seat.
(2) If,----
(a) a member hands over the
letter of resignation to the Speaker personally and informs him that the
resignation is voluntary and genuine and the Speaker has no information or
knowledge to the contrary‑, or
(b) the Speaker receives
the letter of designation by any other means and he, after such inquiry as he
thinks fit, either himself or through the National Assembly Secretariat or
through any other agency, is satisfied that the resignation is voluntary and
genuine, the Speaker shall inform the Assembly of the resignation:
Provided that if a member resigns his seat, when the Assembly is not in
session, the Speaker shall direct that intimation of his resignation specifying
the date of resignation be given to every member immediately.
(3) The Secretary‑
General shall, after the Speaker satisfies himself that the letter of
resignation is voluntary and genuine, cause to be published in the Gazette a
notification for the effect that the member has resigned his seat and forward a
copy of. the notification to the Chief Election Commissioner for taking steps
to fill the vacancy thus caused.
(4) The date of resignation
of a member shall be the date specified in writing by which he has resigned or
if no date is specified therein the date of receipt of such writing by the
Speaker.”
The resignation
of‑member of National Assembly, according. To above provisions, must be
addressed to the Speaker and written under the hand of the member concerned.
The resignation may be handed over personally
by the member concerned to the Speaker and at that time he. May inform the Speaker that it is voluntary and
genuine and if the Speaker has no information
or knowledge to the contrary, his seat becomes vacant immediately. In case, the Speaker receives the letter of
resignation by any other means
he may either hold enquiry himself. or through the National Assembly Secretariat or through any
other agency regarding‑ genuineness and voluntary
nature of the resignation and as soon as the
Speaker is satisfied that the
resignation is genuine and voluntary, it becomes effective. According to sub‑rule (4) of Rule 25, the date of
resignation shall be the date mentioned in the
resignation letter and if no date is. specified therein, the date of
resignation will be the date on which the resignation is received by the
Speaker. As soon as the
resignation becomes effective a notification is ‑ to be issued by the Secretariat of the Speaker in the Gazette
and a copy thereof is to be sent to the Chief
Election Commissioner for taking steps to fill up the vacancy. Therefore,. for a resignation to be Constitution valid, the
above procedure has to be followed.
In the present case, majority of the resignations produced before us do not bear any date. These
resignations, though addressed to the Speaker of National Assembly were received by the President. who had no
authority under the Constitution to
receive them. These resignations received by the President in spite of passage of considerable time were
not forwarded to the Speaker of National
Assembly. The categorical stand taken by the learned Attorney General on the first date of hearing
of the above case before us was, that these resignations
were not meant for creating vacancies in the National Assembly but were only to register their protest and
express their no‑confidence, against the
Government of petitioner. The learned Attorney‑General no doubt modified his above stand by stating. in Court
before us at a later stage of this case
that these resignations were also resignations as such but in view of the statement contained in the written statement of
respondents and the Constitutional position of these resignations discussed
above, I am inclined to hold
that these resignations have no Constitutional validity or value and as such it was not possible on the basis of
these documents to arrive at the conclusion that
the National Assembly had lost its representative character. Even otherwise, out of these resignations, 12 were
tendered about a year ago, in the wake of operation clean up in Sindh Aid were
thus irrelevant for the purposes of present Dissolution Order while the rest
did not represent the majority of the members of the National Assembly. Mr.
S.M. War, the learned counsel for the Care‑taker Prime Minister, however,
contended before us that the existence of an opposition party in the. Assembly,
in a parliamentary form of Government is a necessary part of the system and if
the entire Opposition elects to resign from the Assembly, it would render the
Assembly unrepresentative. The contention of learned counsel has not impressed
me at all.* The argument, if accepted, is not only likely to give rise to
unhealthy parliamentary practices but would also negate the very spirit of a
parliamentary. system. In a parliamentary democracy, the right to form a
Government Is always of the party which is in majority in the Assembly and the
party in minority sits in the Opposition. If it is once accepted that the
opposition party in the Assembly (which is always a minority) by reason of its
on bloc resignations can bring about a dissolution of Assembly, and
consequently an end to the majority rule, it will virtually make the majority
party in the Assembly a hostage at the hands of minority. It will also open new
avenues of political blackmail by the minority in the Assembly of the majority,
as the Opposition party in the Assembly, however, small in number it may be,
can always threaten the existence of the Assembly by resorting to en bloc
resignations of its members and thus imposing its will on the majority, against
the very concept of parliamentary democracy. I
also not oblivious of the
record of our parliamentary history which is ‘in no way a very
commendable one. It is a hard fact of our parliamentary history that the main
aim of a party in opposition in the Assembly, has always been touring down the
Government in power. By accepting the principle that once the opposition party
in the Assembly resigns en bloc the Assembly loses its representatives
character and thus has to be dissolved, we will be adding new dimensions to the
already prevailing unhealthy parliamentary practices in our polity, as the
Opposition party in the Assembly though may be in absolute minority can always
set at naught the majority rule in the Assembly by resorting to en bloc
resignations of its members. This will be a total negation of a parliamentary
system of Government. Mr. S.M. Zafar relied on the case of Adegbenro v.
Akintola 1963 AC 614 in support of his contention that on account of
resignations of 102 members out of the House of 217, the National Assembly
became unrepresentative, and therefore, it was rightly dissolved by the
President. The case is hardly of any assistance to the learned counsel. In the
above‑cited Privy Council’s case, the Governor of Western Nigeria removed
the respondent from the office of Premier and appointed the petitioner in his
place, acting upon a letter, dated 21‑5‑1962, addressed to Governor
signed by 66 members of the House of ‘Assembly out of 124 members, in which it
was stated that they no more supported the respondent. A writ petition was
filed in the concerned Nigerian High Court to challenge the decision of the
Governor. As the question involved in the petition was a substantial question
of, law and interpretation of Constitution, the Nigerian High Court referred
the case to the Federal Supreme Court of Nigeria in accordance with section 108
of the Constitution of Federation of Nigeria for opinion on the following two
questions‑.‑‑‑
“(I) Can the Governor validly exercise power to remove the Premier from
office under section 33, subsection (1), of the Constitution of Western Nigeria
without prior decision or resolution on the fl(;or of the House of Assembly
showing that the Premier no longer commands the support of a majority of the
House?
(2) Can the Governor
validly exercise power to remove the Premier from office under section 33(10)
... on the basis of any materials or information extraneous to the proceedings
of the House of Assembly?*
The Federal Supreme Court of Nigeria answered the first question in the
negative, thus holding that respondent had not been validly removed from office
and found it unnecessary to answer the second question in view of its answer on
the first question. On appeal by the petitioner; the House of Lords in Privy
Council reversed the decision of Nigerian Federal Supreme Court. Their
Lordships of Privy Council while interpreting section 33(10) of Nigerian ‑Constitution
which reads as:
“(10) Subject to the provisions of subsections (8) and (9) of this
section, the Ministers of the Government of the Region shall hold office during
the Governor’s pleasure:
Provided that ‑‑‑ (a) the Governor shall not remove
the’ Premier from office unless it appears to him that the Premier no longer
commands the support of a majority of the members of the House of Assembly‑,
and (b) the Governor shall not remove a Minister other than the Premier from
office except in accordance with the advice of the Premier.”
made the following two observations in the above case
“The question to which an answer has to be found is of obvious
importance, but it lies, nevertheless, within a very s mall compass. Its
decision turns upon the meaning to be attached to the wording of section 33(10)
of the Constitution of Western Nigeria, read, as it should be, in the context
of any other provisions of the Constitution that may legitimately influence its
meaning.
It is clear, to begin with, that the Governor is invested with some
power to dismiss the Premier. Logically, that power is a consequence of the
enactment that Ministers shall hold office during the Governor’s pleasure, for,
subject to the saving conditions of provisions (a) and (b) that follow, the
Governor has only to withdraw‑ his pleasure for a Minister’s tenure of
office to be brought to an end. ‑Where the Premier’s office is concerned
it is proviso (a) that limits the’ Governor’s power to, ,withdraw his pleasure
Constitutionally, for by that proviso he is precluded from removing the Premier
from office ,unless it appears to him that the. Premier no longer commands the
support of a majority of the members of the House of Assembly! By these words,
therefore, the power of removal is at once recognised and conditioned: and,
since the condition of Constitutional action has been reduced to the formula of
these words for the purpose of the written Constitution, it is their
construction and nothing else that must determine the issue . : . ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
... ... .. ... ... ... .. : ... ... .. I . ... ... ... ... ... ... ....
The second observation is perhaps only another way of making the same point. It
is true that in the Western Nigerian
Constitution, allowance made for the federal structure, does embody much of the
Constitutional practice and principle of
the
balance. That
instrument now stands in its own right; and, while it may well be useful on
occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced or
to study decisions on the
Constitution of Australia or the.
The principle
deducible from the above observations, of their Lordships of the Privy Council
is, that while interpreting a written Constitution, the Court will go by the
wording of the document and will not allow it to be overridden by the
extraneous principles of other Constitutions which are not explicit
incorporated in the scheme chosen by the framers of the Constitution. The above‑cited
case has distinguishable features both on facts and on law. In the cited case
out of 124 members of the House of Assembly, 66 had signed the letter addressed
to the Governor expressing their no‑confidence in the Premier, which
accounted for more than half of the total membership of the
House. In the present case 12 members of the National Assembly had
already resigned from their office about a year age and no by‑elections
were held to these seats in spite of passage of a long period. These
resignations were, therefore, wholly irrelevant for the present controversy.
The so‑called remaining resignations sent to President which under the
Constitution had no value or .validity, accounted for .only about 40% of the
total membership of the House and as such it could not be concluded on these
facts that the Assembly had lost its representative character or the petitioner
no longer enjoyed the confidence of * the House. Secondly; section 33(10) of
the Nigerian Constitution is not comparable with Article 91 (5) of our
Constitution, which lays down a specific procedure for ascertaining whether the
Prime Minister enjoys the confidence of the National Assembly or not. I, therefore,
do not find the above‑cited’ case of any assistance to the respondents in
the present case.
I will take up the next ground (b) of the Dissolution Order in the end
for consideration as this appears to be the main ground in the case and a sheet
anchor of the arguments of learned Attorney‑‑ General. This ground,
which is a new one, otherwise needs a detailed examination as it did not ‘come
up for consideration in the two earlier cases of dissolution Of National
Assembly, Federation of Pakistan v. Muhammad Saifullah Khan and Ahmed Tariq
Rahim v. Federation of Pakistan (supra) decided by this Court.
The third ground (c) of the Dissolution Order, besides its main clause
is divided in 3 sub‑heads. These relate to non‑functioning of the
Council Of Common Interests and bypassing of the National Economic Council, by
the Federal Government, in formulation of plans . in respect of financial,
commercial, social and economic policies and specially the process of
privatisation of Industries in relation to item 3 of Part 11 of the Federal
Legislative List, and transgression by the Federal Government in the affairs ‘of
Provincial Government in violation of Article 97 of the Constitution.. The
contention of* learned Attorney‑General before us is that ground (c) and
its three sub‑clauses are similar to grounds Nos. (iii), . (iv) and (v)
of the Dissolution Order in Khawaja Ahmed Tariq Rahim’s case, and this Court ‑having
upheld these grounds as valid reasons* for dissolution of National Assembly in
that case cannot now take a different view in the present case. The argument of
learned Attorney‑General appears to be very attractive and formidable on
its face but it cannot stand the test of an objective scrutiny. No doubt there
appears to be a similarity in the phraseology used in the grounds ,of
Dissolution Orders in ‘the case of Khawaja Ahmed Tariq Rahim and in the present
case but mere –similarity ,in the words or phraseology can neither be T
determinative factor nor a test for identity of the substance of the grounds in
the two cases. In Khawaja Ahmed Tariq Rahim’s case the Court found that the
Federal Government had refused to convene the meeting of Council of Common
Interests and National Finance Commission, the two most important
Constitutional institutions for safeguarding the interest of federating units
and securing and providing an equitable distribution of resources of the
country between the Federal and Provincial Governments, in spite of persistent
demands by the Provinces and a unanimous resolution of the Senate, with the
result the two Federating units, namely, Punjab ‘and Balochistan approached
this Court. for issuing a direction to the Federal Government to convene the
meeting of these Constitutional Institutions. No such situation existed in the
present case on 18‑4‑1993 when the National Assembly was dissolved.
The situation obtaining at the time of dissolution of National Assembly in
Ahmed Tariq Rahim’s case (supra), therefore, is in no Way comparable with the
situation in the present case. The Council of Common Interests and the National
Finance ‘ Commission, in the present case, were very much functioning. The
petitioner has listed in his petition in paragraph (d/1) under the heading ‘Relation
with Provinces’ the following facts:‑‑‑
“(d/1) Relation with Provinces.
The Constitutional provision governing the relations between the
Federal Government and the Provinces have been observed and strengthened to
greater extent in the period since November 1990, than in the preceding 17
years: This is evident from the following facts‑
(i) The Council of Common
Interests which had remained a
dormant organization since its creation was activated and three meetings were
held on
(ii) The National Finance
Commission, which under Article 160(l) of the Constitution, is to be
constituted every 5 years, had not given its award since 1975. A new Commission
was constituted in January 1991, and submitted a unanimous award in April 1991.
This, has provided additional resources of Rs. 25/30 billion each year to the
Provinces and thus met one of the essential prerequisites for enabling the
provinces to discharge the functions entrusted to them under the Constitution.
(iii) A separate Ministry of
Inter-Provincial Coordination was set up. An Inter‑Provincial
Coordination Council was created consisting of several Ministers and the four
Chief Ministers and Prime Minister of AJK Government. The Council has met twice
in a very cordial atmosphere and resolved many Inter .;Provincial issues. The
first meeting ‑ was held on 13th January, 1993‑ and the second on
(iv) While totally ignoring
these positive steps towards strengthening the Federal System only two
instances of lack of consultation with the Constitutional bodies like CCI, NEC
and its Executive Committees have been given. One is that the Council of Common
Interests was not allowed to discharge its Constitutional function with regard
to privatisation of industries and power units. This issue was examined in
depth by the Ministers concerned in response to comments received from the
President and a comprehensive report was sent to the President by the Cabinet
Secretary on
The substance of the above averments by the petitioner could not be
controverted by the respondents. The President in his annual address to the
joint session of Parliament on 19‑12‑1991 also commented upon the
functioning and performance of these Constitutional Bodies, as follows:‑‑‑
I (NJ 41 LJ
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Once again the President had the opportunity of reviewing the
performance of petitioner’s Government in his second annual address to the
joint sitting of Majlis‑e‑Shoora (Parliament) on 23‑12‑1992,
when he commended as follows:
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Did these admitted facts paint a picture of dismal performance by these
Constitutional Bodies under the Government of petitioner or presented a state
of deadlock, stalemate or transgression of the limits set forth in the
Constitution, by the Government of petitioner? Answer to these questions can
only be the negative. The learned Attorney‑General, however, made a somewhat
novel argument in the case to nullify the effects of the two annual addresses
of the Parliament to the joint sessions of Parliament in 1991 and 1992, with
regard to the performance of the Government of petitioner. The learned Attorney‑General
contended that the contents of the above speeches did not represent the views
of President on the working of the Government of petitioner as these speeches
were based mainly on the information supplied by the petitioner’s Secretariat
and reflected the policies of petitioner’s Government. In paragraph 3 of the
petition, the petitioner referred to the address of the Parliament to the joint
session of the Parliament on 23‑12‑1992, as follows:‑‑‑
“3. That in ‘ his yearly
address to the joint session of Parliament, boycotted as usual by PPP, on 23‑12‑1992,
the President of Pakistan praised the performance of the Government of Pakistan
under the leadership of Mian Nawaz Sharif and had nothing adverse to say. He,
in fact, praised the legislative of the legislature, working parliamentary
norms, and handling of damages caused by the unprecedented floods in the
country. He praised the performance of the Government in the economic field and
particularly in regard to
privatization (copy of the Presidential
Address is annexed as
Annexure A).”
The above statement of petitioner was replied to in the written
statement filed on behalf of respondents in the case, as under:‑‑‑
“Averments made in para. 3 relate to the President’s Address to Joint
Session of the Parliament and have been misconstrued by the petitioner as set
out in the para. under reply. It has been the President’s endeavour to support
the Government to give the Nation a sense of security and stability within the
country and abroad. In any event the order of the Dissolution speaks for
itself.”
The respondents never took the plea in the written statement that the
addresses by the President to the joint sessions of Parliament did not
represent his views on the subject and reflected only the policies of the
petitioner’s Government. If the address of the President to the joint session
of Parliament on 23‑12‑1992, was only a prototype of the policies
of the petitioner’s Government, the following observations of the President in
his above address could not be justified:‑‑‑‑
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the joint session of Parliament on 2nd December, 1989, were relied by the
learned Attorney‑General as the objective assessment of the working of
the then National Assembly and the Government in power:‑‑‑
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If the annual address of the President to the joint session of
Parliament in 1990 represented his views on the policies and working of the
then Government in power, on what basis it could be argued now that the annual
addresses of President to joint session of Parliament in 1991 and 1992 was a
prototype of the policies and views of the Government in power? There is
nothing either in Article 56 of the Constitution or in Rules 40 to 47 of the
Rules of Procedure and Conduct of Business in National Assembly, 1992, to
suggest, that address of the President to the joint session of the two Houses
at the commencement of the first session after each general election to the
National Assembly and at. the commencement of the first session year, would
reflect the policies of the Government and not the views of the President. I
am. therefore, of the view that the address of the President to the joint
session of Parliament on the occasion of first session of each year, is his
Constitutional duty under Article 56(3) of the Constitution and in his address
the President is not bound by the policy or views of the Government in power.
The President is free to express his own views and assessment in respect of any
matter concerning the functioning of the Government in power in his said
address to the joint session of Parliament. 1, therefore, find no merit in the
contention of learned Attorney‑General that the address of the President
to the joint session of Parliament in 1991 and .1992 did not reflect his views
on the working of the Government of the petitioner. ‑
The learned Attorney‑General also contended that privatisation of
WAPDA and Electricity, item 3 of Part II of Federal Legislative List and item
34 of the Concurrent Legislative List respectively, by the Government of
petitioner, without approval of a policy in that behalf by the Council of,
Common Interests amounted to a flagrant violation of the Constitutional
requirement. The petitioner specifically denied privatisation of WAPDA
and, generation of Electricity. The learned Attorney‑General was unable
to place any material on record before us to substantiate his contention that
these two services were privatised by the petitioner’s Government. Similarly,
the petitioner also denied privatisation of Railways and contended that the
sale of
landed properties by Railways authorities were not at all connected
with the process of privatisation but it was part of their routine process
under the normal rules. The learned ‘Attorney‑General was also unable to
contradict this contention.
The learned Attorney‑General also made a separate and detailed
submission on the entire policy of the Government of petitioner and contended
that the whole process besides lacking transparency was carried on in utter
disregard of the Constitution and the protest by the Federating Units.‑
The learned Attorney‑General specially referred to the case of sale of
shares of Muslim Commercial Bank and contended that the shares of Muslim
Commercial Bank were sold by petitioner’s Government ignoring the highest bid
in the case. The learned Attorney‑General admitted before us that the
sale of the shares of Muslim Commercial Bank was challenged in a Constitution
petition before the Sindh High Court by the highest bidder but the matter
finally ended in a compromise. The learned Attorney‑General also admitted
that the shares of Muslim Commercial Bank were sold to the successful bidder
only after he had matched his bid with the highest bid in the case. It is also
an admitted fact that the learned attorney‑General, who appeared on Court
notice in Muslim Commercial Bank’s case defended the action of Government
before the Court. In any case, according to the admitted facts, the shares were
sold at the highest bid received in the case. Similarly, the learned Attorney General
was unable to contradict the contention of the petitioner in the case that
large number of Constitutional petitions filed in the High Courts challenging
the sales of Industries and other undertakings under the privatisation scheme,
were decided in favour of the Government on merit, ‘as all these sales were
effected under laws passed by the Senate to implement the privatisation scheme
of the petitioner’s Government. The President had also commented on the
privatisation policy of the petitioner’s Government in his address to the joint
session of Parliament on 19‑12‑1991, as follows:‑
The comments of the President with regard to the privatisation and
economic policies of the petitioner’s Government contained in his address to
the first annual joint session of Parliament on 22‑12‑1992, have
already been reproduced by me earlier in this judgment. The above‑referred
comments by the President, in 1991 and 1992 do show that the process of
privatisation and the economic policies initiated by the petitioner’s
Government had gone well for two years and yielded positive results.
The learned Attorney‑General, however, contended that the whole
process of privatisation was conducted by the petitioner’s Government contrary
to the provisions of the Constitution and bypassing the protests of the
Provinces of Sindh, N.‑W.F.P. and Balochistan. The learned Attorney‑General
invited our attention to the letters written by the three Chief Ministers of
the Provinces of Sindh, N.‑W. F. P. and Balochistan to the President and
the Prime Minister as well as the observations of the President’s Secretariat
conveyed to Prime Minister’s Secretariat in this behalf.
The letter addressed to President by the Sindh Chief Minister is dated
The petitioner has denied privatisation of WAPDA, Railways and Energy
sectors and nothing has been brought before us to contradict this stand of
petitioner. The other matters referred to in the letters of the three Chief
Ministers of the Provinces of Sindh, N.‑W.F.P. and Balochistan are not
Constitutional issues but relate to implementation of decision already taken in
the Constitutional Bodies like CCI and NFC. The learned Attorney‑General
has referred to the legal opinion forwarded to the Cabinet Division through
President’s Secretariat letter, dated 28‑12‑1992, in an attempt to
show that the entire process of privatisation initiated by the petitioner’s
Government was contrary to the provisions of the Constitution. The petitioner
from the very beginning had taken the stand that the process of privatisation
initiated by his Government was not subject to approval of the policies by the
CCI. It was also the contention of the petitioner that the privatisation policy
was implemented by the Government strictly in accordance with the laws passed
by the Senate in this regard. The present case is no appropriate occasion for
an in depth examination of the constitutionality of the process of
privatisation initiated by the petitioner’s Government. The main concern of the
Court in the present case is to discover whether there was such deliberate,
pervasive and continued violation of various provisions of the Constitution by
the petitioner’s Government that it led to the impression that the Government
of Federation was not run in accordance with the provisions of the Constitution
but by extra Constitutional methods. It is an admitted position that process of
privatisation commenced by the Government of petitioner was going on for over
two years. The Constitutional validity of this process was not questioned
either on the floor of Parliament or in the Provincial Assemblies, or by any
other method.
The President during this two years’ period had the occasion to comment
upon the privatisation policies of the petitioner’s Government on 19‑12‑1991
and 23‑12‑1992, in his addresses to the joint sessions of the
Parliament and he not only found this process initiated by the petitioner’s
Government satisfactory, but praised the positive results yielded by it. In
these circumstances, it was not possible to draw an inference that the
petitioner’s Government carried on the process of privatisation by violating ‑the
Constitutional provisions in a deliberate, persistent and pervasive manner.
Grounds (d) and (f)
(iii), (iv) and (v) of the Dissolution Order,
dated 18‑4‑1993, are similar to grounds (c) and (e) (ii) &
(iii) of the Dissolution Order of National Assembly in the case of Ahmed Tariq
Rahim v. Federation of Pakistan (supra). This Court while commenting on the
validity of these grounds qua the Order of Dissolution of National Assembly in
Ahmed Tariq Rahim’s case observed that these grounds by themselves are not
sufficient to warrant dissolution of National Assembly by the President, but
these may be taken into consideration alongwith other relevant grounds for
dissolution of Assembly. Therefore, unless the dissolution order is found to be
based on some relevant grounds, these grounds will be of no relevance.
Ground (e) is totally vague and unsupported by any material. The
learned Attorney‑General is unable to satisfy us, that this ground bears
nexus to the preconditions of Article
58(2)(b) of the Constitution.
In ground (0 (i) of the Dissolution Order, it is stated that Cabinet
was not taken into consideration in respect of numerous Ordinances and matters
of policy. Firstly, the learned Attorney‑General did not specify those
matters which under the Constitution are required to be submitted to the
decision of Cabinet but were not so submitted. Secondly, Article 46(3) of the
Constitution clearly provides that if the President so requires, the Prime
Minister shall submit for the consideration. of the Cabinet any matter on which
a decision has been taken by the Prime Minister or a Minister but which has not
been considered by the Cabinet. We have not been pointed out by the learned
Attorney‑General any such direction by the President which was not
complied with by the Prime Minister. A statement riled by the learned Attorney‑General
during the course of hearing of the petition on the contrary shows that out of
78 Ordinances 50 were approved by the Cabinet.
Ground (f) (ii) relates to alleged prevention of federal Ministers from
,calling on the President. The petitioner has categorically denied this
assertion and there is no material before us to arrive at the conclusion that
any direction was issued . by the Prime Minister to the Ministers, not to see
or call on the President. On the contrary, the press reports filed by both the
sides in the case do show that quite a few Federal Ministers visited Presidency
frequently and made statements after meeting the President. The fact that
several federal Ministers tendered their resignations personally to the
President also shows that there was no physical restraint on the Ministers to
meet the President. On the Constitutional plane, Article 91 provides that there
shall be a Cabinet of Ministers with Prime Minister at its head, to aid and
advise the President in the exercise of his functions. Clause (4) of Article 91
(supra) provides that the Cabinet together with Ministers of State shall be
collectively responsible to the National Assembly. These provisions in the
Constitution make it abundantly clear that the Cabinet including the Ministers
of State are collectively responsible to the National Assembly in aiding and advising the President in
discharge of his functions, the Cabinet can act only through the Prime
Minister. The concept of collective responsibility of Cabinet has made the role
of Ministers individually of no consequence under the Constitution. In these
circumstances, nothing substantial turns out from grounds ‘f (i) and (ii).
Ground (g) of the Dissolution Order relates to the complaint of Begum
Nuzhat Asif Nawaz regarding the alleged highhanded treatment meted out to the
late General by the highest functionaries of the Federal Government and the
circumstances resulting in the death of the !ate General. The record produced
before us by the respondents shows that on 124‑1993, the Secretary to the
President addressed a letter to Prime Minister’s Secretariat, enclosing Press
clippings regarding serious allegations levelled by Begum Nuzhat Nawaz widow of
late General Asif Nawaz and requested for appointment of a High Level
Commission, consisting of Judges of Supreme Court and High Court to enquire
into the allegations on priority basis and submit a report alongwith their
recommendations. It was also requested in that letter that immediate interim
measures, in the meantime, may be taken in respect of the two persons named by
the lady. The letter from the Principal Secretary to the Prime Minister, dated
12‑4‑1993, addressed to Mr. Fazalur Rehman Khan, Secretary to
President shows that the Prime Minister had already announced appointment of a
Commission consisting of 3 Judges of the Supreme Court before receipt of the
letter from President Secretariat. However, with regard to the interim action
suggested against the two persons named by Mrs. Nuzhat Asif Nawaz, in the
letter of the President’s Secretariat dated 12‑4‑1993, a query was
raised as to what action could be taken against these persons when the matter
was being enquired into by the Tribunal appointed b3 the Government. This
letter was replied by the President’s Secretariat on 15‑4‑1993, as
follows:‑‑‑
“Subject: APPOINTMENT OF A JUDICIAL COMMISSION
Kindly refer to P.M. Sectt. u.o. No.800/JS(Law)/93, dated
2-Our communication of 12th April was in fact delivered on a most
immediate basis by a special messenger and received at 17‑50r hours as
per attachment. In any case, the matter was mentioned that morning by the
President to Mr. Shahbaz Sharif, M.N.A.
3-Important, however, is what is stated in para. 2 of your letter. We
are indeed surprised that you should say ‘it is not clear as to what action is
envisaged’ when this should be routine at the time of any investigation let
alone when grave and serious allegations are made by the widow of a very
respected COAS against a senior officer controlling the facts. The President
repeated this to the Prime Minister yesterday.
I (Sd/.)
(Fazalur Rahman Khan),
Secretary to the President.”
From the above‑stated facts, it is quite clear that there was no
delay on the part of petitioner in appointing the Judicial Commission to
enquire into the allegation of Mrs. Nuzhat Nawaz as desired by the President.
It is admitted by the learned Attorney‑General that the Commission
constituted by the Government has since submitted his report. In these
circumstances, there remains no significance of this ground.
I now revert to ground (b) of the Dissolution Order, dated 18‑4‑1993,
which I had left for consideration in the ‘end. The learned Attorney‑General
as well as Mr. S.M. Zafar, the learned counsel for Care‑taker Prime
Minister, jointly contended that on account of the speech of Prime Minister on
Television on 17‑4‑1993, a situation of complete deadlock and
stalemate developed which left no alternative with the President except to
dissolve the National Assembly and make a fresh appeal to the electorate in
accordance with Article M(2)(b) of the Constitution. According to respondents,
the Prime Minister in his speech had described the President as a person who
was involved in conspiracy to destabilise the petitioner’s Government and after
these serious allegations by the petitioner, it could not be expected that the
President would be able to discharge his Constitutional duties in relation to
the Government of petitioner. In order to appreciate the thrust of this ground
it is necessary to first determine the positions of the President and the Prime
Minister in the Constitutional scheme.
The President is elected under‑Article 41 of the Constitution
through an electoral college, consisting of members of the two Houses of
Parliament and four Provincial Assemblies. Articles 48, 90 and 91 of the
Constitution spell out the extent of power to be exercised by the President ,
under the Constitution. These Articles are as follows:‑‑‑
“48. In the exercise of his
functions, the President shall act in accordance with. the advice of the Cabinet (or the Prime Minister):
(Provided that the President may require the Cabinet or as the case may
be, the Prime Minister to consider such advice, either generally or otherwise,
and the President shall act in accordance with the advice tendered after such
reconsideration).
Notwithstanding anything contained in clause (1), the President shall
act in his discretion in respect of any matter in respect of which he is
empowered by the Constitution to do so (and the validity of anything done by
the President in his discretion shall not be called in question on any ground
whatsoever)
(4) The question whether
any, and if so what, advice was tendered to the President by the Cabinet, the
Prime Minister, a Minister or Minister of State shall not be inquired into in,
or by, any Court, Tribunal or other authority.
(5) Where the President
dissolves the National Assembly, he shall, in his discretion‑‑‑
(a) appoint a date, not
later than 90 (ninety) days from the date of the dissolution, for the holding of a general election to the
Assembly; and
(b) appoint a Care‑taker
Cabinet.
(6) If, at any time, the
President, in his discretion, or on the advice of the Prime Minister, considers that it is desirable that any matter
of national importance should be referred to a referendum, the President may
cause the matter to be referred to a referendum in the form of a question that
is capable of being answered either by ‘Yes, or ‘No’.
(7) An act of Majlis‑e‑Shoora
(Parliament) may lay down the procedure
for the holding of a referendum and the compiling’ and consolidation of the
result of a referendum.)
90. (1) The executive
authority of the Federation shall vest. in the President and shall be exercised
by him, either directly or through officers subordinate to him, in accordance
with the Constitution.
(2) Nothing contained in
clause (1) shall‑‑
(a) be deemed
to transfer to the President any functions conferred by and existing law on the Government of any
Province or other authority; or
(b) prevent the
Majlis‑e‑Shoora (Parliament) from conferring by law functions on authorities other than
the President.
91 (1) There shall be a
Cabinet of Ministers, with the Prime Minister at its head, to aid and advise
the President in the exercise of his functions.
(2) The President shall in
his discretion appoint from amongst the members of the National Assembly a
Prime Minister who in his opinion, is most likely to command the confidence of
the majority of the members of the National Assembly.
(2A) Notwithstanding
anything contained in clause (2), after the twentieth day of March, one
thousand nine hundred and ninety, the President shall invite the members of the National Assembly to be the Prime Minister who commands the confidence of the
majority of the members of the National Assembly, as ascertained in a session
of the Assembly, summoned for
the purpose in accordance with the provisions of the Constitution.
(3) The Person appointed
under clause (2) (or as the case may be), invited under clause (2A) shall,
before entering upon the office, make before the President oath in the form set
out in the Third Schedule and shall within a period of sixty days thereof
obtain a vote of confidence from the National Assembly.
(4) The Cabinet, together
with the Ministers of State, shall be collectively responsible to the National
Assembly.
(5) The Prime Minister
shall hold office during the pleasure of the President, but the President shall
not exercise his powers under this clause unless he is satisfied that the Prime
Minister does not command the confidence of the majority of the members of the
National Assembly, in which case he shall summon the National Assembly and
require the Prime Minister to obtain a vote of confidence from the Assembly.
(6) The Prime Minister may,
by writing under his hand addressed to the President, resign his office.
(7) A Minister who for any
period of six consecutive months is not a member of the National Assembly
shall, at the expiration of that period cease to be a Minister and shall not
before the dissolution of that Assembly be again appointed a Minister unless he
is elected a member of that Assembly:
Provided that nothing contained in this clause shall apply to a
Minister who is a member of the Senate.
(8) Nothing contained in
this Article shall be construed as disqualifying the Prime Minister or any
other Minister or a Minister of State for continuing in office during any
period during which the National Assembly stands dissolved, or as preventing
the appointment of any person as Prime Minister or other Minister or as
Minister of State during any such period.”
On a careful examination of the above Articles of the Constitution it
is quite clear that the President in discharge of his functions under ‑
the Constitution has to act on the advice of Prime Minister or the Cabinet,
except in those cases where he is specifically authorised by the Constitution
to act in his discretion. The discretionary powers of the President under the
Constitution are limited to the extent of making a few appointments to the high
Constitutional offices, besides his power to dissolve the National Assembly
(Article 58(2)(a) and (b)), to refer a matter of National importance to
referendum (Article 48(6)) and to fix a date for election within 90 days on
dissolution of National Assembly and to appoint a Care‑taker Cabinet
(Article 48(5)). Besides, the above discretionary powers of the President under
the Constitution, the Prime Minister is constitutionally bound to communicate
to the President all decisions of the Cabinet relating to the administration of
the affairs of Federation and proposal for legislation (Article 46(a)). The
President may also call for from the Prime Minister any information relating to
the administration of the affairs of the Federation and may also require for
submission to the Cabinet for consideration any matter on which a decision has
been taken by the Prime Minister or a Minister but not considered by the
Cabinet (Article 46(b) and (c)). The President also has the right to address
either House or both the Houses of Parliament (Article 56(l)) besides his
right! to send messages to either House and the matter contained in such
messages I to be considered by the House (Article 56(2)). At the commencement
of first session of National Assembly after general elections and at the
commencement of first session of each year, the President has the right to
address the joint session of the two Houses of Majlis‑e‑Shoora
(Parliament) Article 56(3)). It is quite significant that under Article 91(4)
of the Constitution, the Cabinet together with Ministers of State is
collectively responsible to the National Assembly alone. It is also very
important to note that although the Prime Minister holds the office at the
pleasure of the President but this pleasure cannot be exercised by the President
so long as the Prime Minister commands the confidence of the majority of the
members of the National Assembly and in order to ascertain whether the Prime
Minister has lost the confidence of the majority of the members of the National
Assembly, the President is obliged to summon a session of National Assembly and
ask the Prime Minister to seek a vote of confidence from the Assembly (Article
91(5)). From the above‑stated Constitutional position, there remains no
room for any doubt that the Prime Minister in running the affairs of the
Government is neither answerable to President nor in that capacity he is
subordinate to the President. In formulating the policies of his Government and
running its affairs the Prime Minister under the Constitution is answerable
only to the National Assembly and the President has no Constitutional role in
this behalf. The President in all such matters is bound by the advice of Prime
Minister or the Cabinet. No doubt, President may require the Cabinet or the
Prime Minister, as the case may be, to reconsider any advice tendered to him but the President is bound to act on the
advice tendered after re‑consideration.
The President and the Prime Minister have defined roles under the’
Constitution which do not overlap. They exercise powers in their respective
Constitutional domain unhindered and uninterrupted by each other. No doubt.
Constitutionally it would be an ideal situation where both the President and
the Prime Minister have identity of views on matters concerning the affairs of
the Federation but ideals do not exist in reality as they are outcome of
imagination. I Therefore, difference in perception on the part of holders of
these two top offices on any issue should not cause any stirring or alarm as in
spite of different perceptions, personal likes or dislikes the two can co‑exist
Constitutionally. It is important to note that while addressing an issue in
discharge of their Constitutional obligation, both the President and Prime
Minister are bound to act within the limitations imposed on them by the
Constitution and their personal feelings, likes or dislikes cannot override the
Constitutional mandate. We should also bear in mind that the method of election
provided under the Constitution for these two top offices, also foresees a
possibility that the holders of these two top posts may not belong to the same
political party. Therefore, possibility of a play in the relationship between
the holders of these two top posts cannot be ruled out.
No doubt, the President as the symbol of the unity of Federation
occupies a neutral position in the Constitution, and in that capacity he is
entitled to highest respect and regard by all the functionaries of the State.
But it is equally important that in order to protect and preserve the dignity
of this high office and this neutral image under the Constitution the President
must keep aloof from all political imbroglio. If the President is unable to
ward off the temptation to keep away from political game or he starts siding
with one or the other political element in the Assembly, he is likely to lose
his image as the neutral arbiter in national affairs and as a symbol of unity
of Federation under the Constitution. In the latter event, his conduct may also
come under criticism from those who may feel betrayed.
The speech delivered by the Prime Minister on Television on 17‑4‑1993,
therefore, has to be examined in the light of preceding discussion and the
prevailing political situation at the relevant time. From the material placed
on record before us it appears that the petitioner after the annual speech of
the President before the joint session of Parliament on 23‑12‑1992,
started a political campaign for repeal of the controversial 8th Amendment in
the Constitution. The press report of the post‑December 1992 period
indicated that some sort of consensus had developed between the Government and
the opposition party in ‑the National Assembly on this issue which
created uneasiness in the relation between the President and the Prime
Minister. However, some political elements in the Assembly opposed this move of
the Government and there was also a split within the Ruling Party on this
issue. The Press also blew up out of proportion the uneasy relation between
President and the Prime Minister. This situation was further aggravated when
some Ministers of Federal Cabinet who did not go alongwith the policies of
petitioner called on the President and after their meeting with the President
gave the impression to the press that dissolution of Federal Cabinet and the
National Assembly was imminent. This was followed by spate of press statements
by different political elements hostile to petitioner’s Government hinting at
the action by the President to dismiss the Government of petitioner very soon.
In this charged atmosphere of political despondency the petitioner met with the
President on 14‑4‑1993 at the Presidency at
It is true that on account of criticism of President’s conduct by the
petitioner in his speech a climate of mistrust may have developed between the
two, but as pointed out earlier these two top functionaries of Federation have
definite and defined roles under the Constitution which they could continue to
discharge in accordance with their Constitutional obligations irrespective of
their personal aversions to each other. I am, therefore, of the view that the
speech of the petitioner delivered on 17‑4‑1993, did not have the
effect of creating any deadlock or stalemate in the working of the Government
of Federation.
As a result of above discussion, I have reached the conclusion that
grounds mentioned in Dissolution Order dated 18‑4‑1993, neither Collectively
‘y e nor individually justified the inference that a situation had arisen in
which the e Government of Federation could not be carried on in accordance with
the provisions of the Constitution and an appeal to electorate was necessary. I
may dissolution once again state here that the Court in considering the grounds
of dissolution of Assembly under Article 58 (2)(b) (supra) “is not concerned
with these pace progress, the shade of the quality or the degree of performance
or quantum achievement. It is only
concerned with the breakdown of the Constitution mechanism, a stalemate, a
deadlock in ensuring the observance of the provisions of the Constitution”.
1, accordingly, allow the petition, declare the impugned order
dissolution of National Assembly and dismissal of Federal Cabinet as without
lawful authority and of no legal effect. As a consequence of above declaration,
the National Assembly, Prime Minister and the Cabinet stand restored and shall
be entitled to function as immediately before the impugned order was passed.
All steps taken pursuant to the order, dated 18‑4‑1993, under
Article 58(2)(b) of the Constitution including the appointment of Care‑taker
Cabinet and Care‑taker Prime Minister are also declared of no legal
effect. However, all orders passed, acts done and measures taken in the
meanwhile by the Care‑taker Government, which have been done, taken and
given effect to in accordance with the terms of the Constitution and were
required to be done or taken for the ordinary and orderly running of the State
shall be deemed to have been validly and legally done. There will be no order
as to costs.
M.BA./M‑1777/S Petition
accepted
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