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