PLJ 1991
Present: MUHAMMAD RAFIQ TARAR CJ, M.MAHBOOB AHMAD, MANZOOR HUSSAIN SlAL, IHASANUL HAQ CHAUDHARY AND MALIK MUHAMMAD QAYYUM
JJ
KHAWAJA AHMAD TARIQ RAHIM-Petitioner
Versus
Federation
of
Writ petition No.6228 of 1990, (also W.P. Nos.6257 and 5849 of 1990) dismissed
on 14.10.1990
(i) Constitution
of
—Art.48(5) read with Article 91(8)-National Assembly-dissolution of~Care- taker Prime Minister-Appointment of-Challenge to~There is no limitation on power of President to appoint any person as Prime Minister-He has absolute discretion to appoint any person as Prime Minister to head care-taker cabinet—Held: Appointment of respondent No.2 as Care-taker Prime Minister is unexceptionable (Per Muhammad Rafiq Tarar CJ). [P.26JJ
(ii) Constitution
of
—Art.48(5) read with Article 91(8)~National Assembly-Dissolution of-Challenge to—Appointment of respondent No.2 as Care-taker Prime Minister--Whether can be challenged—Question of—Contention that respondent No.2 being leader of opposition in dissolved Assembly, could not have been appointed as Prime Minister after dissolution-Under Article 48(5), appointment of Care-taker cabinet and its composition is in sole discretion of President-Held: Objections raised by Petitioner are without substance and thus not tenable-Held further: Appointment of respondent No.2 as Prime Minister heading care-taker cabinet having been made by President in exercise of his discretion, is unexceptionable and cannot legitimately be questioned in High Court. (Per M.Mahboob Ahmad J). [Fp.bi&S/jAAN, AAO, AAP & AAO
(iii) Constitution
of
—Art. 48(5)-read with article 91(8)-National Assembly-Dissolution of~ Challenge to-Contention that appointment of respondent No.2 as Prime Minister to head care-taker cabinet, was malafide-Held: Contention has no merit because provisions of Article 48(5) read with Article 91(8) of Constitution clearly provide that after dissolution of National Assembly, any person can be appointed as Prime Minister to head care-taker cabinet. (Per Muhammad Rafiq Tarar CJ). [P.24JH
(iv) Constitution of
—Art.58 read with Article 48—National Assembly—Dissolution of—Challenge to—Balance of power inter-se President and Prime Minister—Determination of- -Nation has experienced consequences of split mandate returned by people in last general elections giving rise to unabated confrontation between Federal and Provincial Governments detrimental to development of democratic process in country-Held: If electorate in on-coming elections acts discreetly in electing one of major contesting parties with at least /3rd majority, it will facilitate Parliament to amend and make Constitution in accord with aspirations of people as embodied in Objectives Resolution. (Per Manzoor Hussain Sial J). [P.85]AAS
(v) Constitution of
Art.58
read with Article 48-National Assembly-Dissolution of-Challenge to-Balance of power inter-se
President and Prime Minister-Whether can be determined by High Court—Question
of—Objection raised by DrA.Basit, Advocate, is that amendments made through Eighth Amendment Act,
1985, have tilted balance of power in favour
of President- uestion as to what should
be balance of power inler-se President and Prime Minister is a political
question and any endeavour to resolve such an issue would amount to entering into political arena beyond jurisdictional domain
of Judiciary-Held: It is desirable that politically sensitive question should
be resolved on floor of House by elected members of Parliament which is
competent to amend Constitutional provisions.
(Per Manzoor Hussain Sial J). [P.84]
(vi) Constitution of
—-Art, 58(2)(b)-National Assembly-Dissolution of-Challenge to-Argument that if petitioner is
able to show that only one of grounds of impugned order is not sustainable,
order as a whole should fall in view of observation of learned Chief Justice in
Saifullah's case approved by Supreme Court—Held: Observations appear to be based on
facts of cited case in which it was specifically held that none of grounds as taken by then President
for forming his opinion to dissolve
Assembly, existed or had any nexus with pre-conditions
laid down in Article 58(2)(fr)--HeId further: Other Hon'ble Judges of
Bench gave findings which do not co-incide
with observations of learned Chief Justice, and, therefore, principle
connot be said to be one laid down by Court (Per
M.Mahboob Ahmad J). [Pp.53&55]T,U & V
PLD 1988
(vii) Constitution of
—Art. 58(2)(b) read with Article 199-National Assembly-Dissolution of-Challenge (o-Argument that powers conferred upon President under Article 58(2)(b) do not fit in Constitution of a Parliamentary form of Government and thus same should be construed so as to practically divest President from exercise of this power-Held: Court being a creation of Constitution itself can neither add to it nor substract therefrom in any manner-Held further: It is not in all cases necessary that Parliamentary form of Government in every country should be run on some general principles of Parliamentary form even where Constitutional provisions are different. (Per M.Mahboob Ahmad J).
[P:52]Q,R&S
Constitutional and Administrative Law
by de Smith, 6th Edn. P.74 rel.
(viii) Constitution of
—-Art.58(2)(b) read with Article 14~National
Assembly-Dissolution of- Challengc
to-Article 14 guarantees that dignity of man and, subject to law, privacy of home shall be inviolable—this
fundamental right was flagrantly violated
and disregarded by taping telephones of highly respectable persons including
Chairman of Senate and Speaker of National Assembly-Right of privacy of citizen is not only guaranteed by
Constitution but has its foundations in Quranic Injunctions and Islamic
traditions—Held: No lawful authority is
shown to be existing in favour of any person
to order taping of telephones. (Per
M.Mahboob Ahmad J). [P.74JAW, AX & AY
Sura Al Hujurat, Verse 12 and PLJ 1990
Magazine 118 ref.
(ix) Constitution of
—Art. 58(2) (fr)-National Assembly-Dissolution of~Challenge to-Constitutional organs of State like Senate and superior judiciary were publicly ridiculed and brought into disrespect-Plea of Federation through Deputy Attorney General/Attorney General that Senate is an invalid body and has no recognition under Constitution—Prime Minister remarked about ex-Members of Senate that "the democratic Government does not want to give VIP status to collaborators of treason"~Seminor in respect of a case decided by High Court and Supreme Court, was held Just to criticize it in a manner which brings superior judiciary into disrespect in eyes of general public—Seminar was chaired by a Governor, and Prime Minister and Senior Minister participated in this seminar and a wide publicity was given to it-Judgment was dubbed as dishonest-Manner in which over three dozens of Judges were dealt with, indicates "respect" that the then Government had towards superior judiciary. (Per M.Mahboob Ahmad J). [P.75JAZ, AAA & AAB
(x) Constitution of
—Art.58(2) (b)--National Assembly-Dissolution
of-Challenge to-Contention that
there were other remedies available for checking corruption, nepotism, defection of Members, misuse of funds and
horse-trading—President patiently watched
developments and advised Federal Government time and again to adopt proper course of action but vices excalated
to such a proportion that very solidarity and integrity of country was
at stake-Held: President had no option but
to dissolve National Assembly in his discretion. (Per Muhammad
Rafiq Tarar CJ). [P.22JD
(xi) Constitution of
—Art.58(2) (fa)--National Assembly-Dissolution
of-Challenge to-Material has been brought on record to the effect that National
Assembly had lost its significance by its failure to do substantial legislative
work other than adoption of Finance Bill-Unproductive internal confrontation among
members of Assembly, paralysed Constitutional set up of Federal Government and incapacitated
legislature to do its primary business of legislation-Held: Legislature being one of important organs
of State, could not even carry on its
primary function of legislation which
reflected failure of Constitutional frame work. (Per Muhammad Rafiq Tarar CJ) [P.27]L
(xii) Constitution
of
—-Art.58(2)(b) read with Article 199-National Assembly-Dissolution of-Challenge to—Whether Dissolution order can be judicially reviewed by High Court-Question of-Held: In light of principles laid down in Saifullah's case, it can safely be held that order passed by President under Article 58(2)(b) of Constitution can be judicially reviewed by High Court in exercise of powers conferred on it by Article 199 of Constitution. (Per M. Mahboob Ahmad J).
[P.50]O
PLD 1989 SC 166=PLJ 1989 SC 170 rel.
(xiii) Constitution of
—Art.58(2) (b)-National Assembly-Dissolution of-Challenge to-Whether Dissolution Order was justified-Question of~there is no merit in contention that there was no constitutional break-down when President invoked his jurisdiction to dissolve National Assembly-Held: Facts brought on record and considered by President justified him to hold that Government of Federation was unable to function in accordance with provisions of Constitution.(Per Muhammad Rafiq Tarar CJ). [P.21]C
(xiv) Constitution of
—Art.58(2) (b)--National Assembly-Dissolution of-Challenge to-Whether entire order stands vitiated if one of grounds is found non-existent-Question of-In Muhammad Sharif s case, then Chief Justice made a passing remark in nature of purely obiter dicta that if one of grounds is found non-existent, entire order stands vitiated-Supreme Court made no reference to this observation-This point was neither agitated nor discussed before Supreme Court—Held: Principle applicable is that before an order passed by a public functionary is struck down, it is duty of court to explore every possible explanation for its validity and examine entire field of powers conferred on authority in pursuance to which impugned order was passed. (Per Muhammad Rafiq Tarar CJ).
lPp.22,23&24]E,F & G.
PLD 1969 SC 210, AIR
1943 FC 1(8) and PLD 1983
(xv) Constitution of
—- Art. 58(2) (ft)-National
Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution Order have
nexus with preconditions prescribed in Article 58(2) (fr)--Question of-Activity of
horse-trading assumed such scandalous proportions that President had to dwell upon
it in his address to joint session of Parliament on 2.12.1989—Example of
horse-trading is clearly demonstrated by fact that some of opposition Members of
Assembly who were instrumental in defeat of no-confidence motion against Prime Minister,
were
immediately thereafter appointed Ministers/Ministers of State—Held: Curse of horse-trading was a
valid ground for dissolution of Assembly. (Per M.Mahboob Ahmad J). [P.68]AK & AL
(xvi) Constitution of
—-art.58(2)(b) read with Articles 245 and 148(3)-National Assembly-Dissolution of-challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed in Article 58(2)(b)--Question of-Disturbances in Sindh had assumed serious proportions-Even then Attorney General had stated his opinion that Article 245 of Constitution was necessarily required to be invoked-President, Governor and Principal Law Officer of Government were all of view that in order to save valuable life and property of citizens, a provision of Constitution should be invoked and yet Government failed to act-No doubt maintenance of Law and Order situation is a responsibility of Provincial Government, but where internal disturbances are beyond its control, it becomes duty of Federal Government under Article 148(3) to protect province-Held: It is established that Government of Federation could not be run in accordance with provisions of Constitution and dissolution of National Assembly was justified. (Per M.Mahboob Ahmad J).
[Pp.68,69,70&71]AM, AN, AO & AP
(xvii) Constitution
of
—Art.58(2)(b) read with Articles 153, 154 & 160-National Assembly-Dissolution
of-Challenge to-Whether grounds of Dissolution order have nexus with
preconditions prescribed by Article 58(2)(b)—Question of—Federal Government despite
repeated demands by three out of four federating units and unanimous resolution of Senate, failed to call a meeting of
Council of common interests—President
re-emphasized that in order to resolve Centre Provinces differences, it was necessary to let constitutional
institutions
function—Formation of another important constitutional institution, i.e. National Finance Commission was continuously
delayed-Federating Units were thus
deprived of constitutional remedy for redress of their grievances qua distribution of revenues-Held: President only took
notice of acrimony between Federation
and Provinces and considered it a matter relatable to grounds envisaged by Article 58(2)(b) of
Constitution for passing an order thereunder. (Per M.Mahboob Ahmad J). [Pp.71,72&73]
(xviii) Constitution
of
—-Art.58(2) (ft)-National Assembly-Dissolution
of-Challenge to-Whether grounds of Dissolution order have nexus with
preconditions prescribed in Article 58(2) (b)--Question of—Huge amounts were
disbursed on orders of Ex- Prime
Minister out of secret service fund—Statement made before Court by Maj. Gen.(Retd.) Naseerullah Khan Babar does not
inspire any confidence- Misuse of
secret fund being a subject of a Reference under P.O. No.17 of 1977, no further
comments are needed-Held: President could legitimately
take notice of filtering away of huge amounts from secret service fund,
for passing order under Article 58(2)(fo) of
Constitution. (Per M.Mahboob ahmad J). [Pp.78&79]AAF,
AAG, AAH, AAJ & AAK
(xix) Constitution
of
—Art.58 (2) (fr)-National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with pre-conditions prescribed in Art.58(2)(b)-Question of-Main purpose of Parliament, of which National Assembly is an important component, is to undertake legislative work—There was material before President that National Assembly not only did not but was also not in a position to carry out any substantial legislative work effectively— During 20 months tenure, out of 50 Ordinances/Bills, only 15 could be passed- -Held: There was breakdown of legislative machinery resulting in a deadlock which has a direct nexus with Article 58(2)(b) of Constition and President was justified in making this ground a basis for dissolving Assembly. (Per Mahboob Ahmad J). [P.67JAF, AG, AH & AJ
(xx) Constitution of
—Art.58 (2) (b)-National Assembly-Dissolution
of-Challenge to—whether reasons forming basis of Dissolution Order had nexus
with pre-conditions prescribed in Article 58(2) (b)--Qeustiori of-Material
placed on record coupled with
affidavits, shows that entire material was before president when he formed opinion about situation and passed
impugned order—Held: Reasons forming
basis of order had direct nexus with action taken and pre-conditions prescribed in Article 58(2) (b) of
Constitution. (Per Muhammad Rafiq Tarar,
CJ). [P.21]B
(xxi) Constitution of
-—An.58(2) (b)--National Assembly-Dissolution
of-Challenge to-Whether grounds of Dissolution Order had nexus with
preconditions prescribed under Article 58(2) (b) of Constitution—Question
of—President had validly passed impugned order because be had formed an
opinion that Government of Federation could not be carried on in accordance with
provisions of Constitution and appeal to electorate was necessary-Held: Grounds that weighed with
president for passing impugned order had direct nexus with
preconditions
prescribed by Article 58(2) (b) of Constitution-Held further: Impugned order is
not liable to be interfered with in Constitutional jurisdiction of High Court. (Per Muhammad Rafiq Tarar
CJ) [P.32]M
& N
(xxii) Constitution
of
—Art. 58 (2) (b)--National Assembly-Dissolution of-Challenge to-Whether grounds of Dissolution order have nexus with preconditions prescribed in Article 58(2) (b)--Question of-Reference has been made to some other misuses of resources of Government and statutory corporations/Banks etc., for political ends—No specific finding is being given thereon as they may also be subject of Reference/other legal proceedings and any comments may prejudice either of parties in those proceedings-Held: Ground taken in this regard by President can be reasonably said to have nexus with pre-conditions envisaged in Article 58(2)(b) of Constitution. (Per M. Mahboob Ahmad J).
[P.80]AAL & AAM
(xxiii) Constitution
of
—-Art. 58(2) (b)--National
Assembly-Dissolution of-Challenge to-Whether grounds in Dissolution Order have
nexus with preconditions prescribed in Article 58(2) (b)-Question of-26000
Appointments were made not only on political basis, appointees being
members/workers of PPP only, but same were also without consideration of merits and of
even such persons who being dismissed Government servants were ineligible for
re-appointment- Wholesable
appointments in service of Federation and statutory corporations
were through agency of Placement Bureau
which neither had any legal status nor
any legislative backing-Held: Action taken by constitutional functionary empowered
to do so, against such a Government, cannot be said to have no nexus with preconditions (prescribed by Article
58(2)(b) of Constitution). (Per M.Mahboob
Ahmad J). [Pp.75,76&77]AAC, AAD & AAE
(xxiv) Constitution
of
—- Art.58(2) (/?) read with Article 97-National Assembly-Dissolution of-Challenge to—Whether grounds of Dissolution order have nexus with preconditions prescribed by Article 58(2)(fr)--Question of~Two Provinces did not approve of action of Federal Government in launching Peoples Programme without participation of Provincial Governments—Direct launching of this programme could have resulted in a sort of civil war—Article 97 prohibits extension of Federal executive authority in any province—Launching of this programme is neither envisaged by any provision of Constitution nor any law is shown to have been made by parliament for this purpose-Held: These violations of Constitutional requirement cannot be, but termed as valid ground for action under Article 58(2)(b) of Constitution. (Per M. Mahboob Ahmad J).
[Pp.73&74]AT, AU & AV
(xxv) Constitution
of
—-Art. 58(2) (b)--National
Assembly-Dissolution of-Challenge to-Whether opinion that Federal Government could
not be carried on in accordance with provisions of Constitution was rightly formed
by President-Question of~ President
applied his mind to facts and accompanying events and recorded reasons in
self-contained order-Held: President had rightly formed an opinion that situation had arisen in which Government of
Federation could not be carried on in
accordance with provisions of Constitution. (Per Muhammad
Rafiq Tarar CJ). [P.26]K
PLD 1989 SC 166 distinguished,
(xxvi) Constitution of
—Art. 58(2)(6)-National Assembly-Dissolution of-Challenge to-Whether order as a whole is to be struck down if one of grounds is non-existent or vague-Question of-Held: Universal application of this proposition cannot be given effect to on very weighty reason based on another well settled principle of law namely that before striking down an order, Court must explore every possible explanation for its validity and examine entire field of powers conferred on authority by which impugned order has been passed and all efforts must be made to uphold it. (Per M.Mahboob Ahmad J). [P.60]X & Y
PLD 1966 SC 725 and PLD 1971 SC 811 rel.
(xxvii) Constitution
of
—-Art. 58(2) (b)-National Assembly-Dissolution of-Challenge to~Whether President could dissolve National Assembly—Question of—President has first to assess situation and form an opinion objectively that Government of Federation cannot be carried on in accordance with .provisions of Constitution- -Held: It is prerogative of President to dissolve National Assembly provided that preconditions set out in Article 58(2) (b) of Constitution are fully satisfied. (Per Muhammad Rafiq Tarar, CJ) [P.21JA
PLD 1989 SC 166 = PLJ 1989 SC 170
rel.
(xxviii) Constitution of Pakistan, 1973--
—Arl.58(2) (b) read with Article 2-A~National Assembly-Dissolution of-Challenge to—Words "an appeal to the electorate is necessary"—Scope of— Constitution envisages Pakistan to be an Islamic Republic, where per our belief, sovereignty over entire universe belongs to Almighty Allah alone-Sovereignty over Pakistan is delegated by Almighty Allah to people of Pakistan as a sacred trust through its chosen representatives, i.e. Members of Parliament—Held: If sacred trust reposed in Members of Assembly by people as delegate of God Almighty is abused, misused or not exercised in accordance with tenets of Islam and Constitution, President can, by dissolving Assembly, make an appeal afresh to people who, in common parlance of parliamentary language, are political sovereigns. (Per M.Mahboob Ahmad J).
[Pp.62,64&65[AB, AC & AD
Verses in Holy Quran, and An Introduction to the study of the Law of the Constitution, tenth edition, at Page 433 ref.
(xxix) Constitution of Pakistan, 1973-
—Art.58(2) (b)--National Assembly-Dissolution of challenge to~Words "discretion" and "opinion" used in clause (2) of Article 58, lead to plausible inference that exercise of discretion has to follow formation of an opinion- Opinion has to be objective-Held: Court will not interfere in exercise of discretion merely on ground that another conclusion may be possible. (Per M.Mahboob Ahmad J). [P.61]AA
(xxx) Constitution of Pakistan, 1973--
—-Art.199 read with Article 58(2)(£)~National
Assembly-Dissolution of- Challenge to—Judicial review—Scope of—Judicial review
contemplated for exercise of Constitutional jurisdiction by High Court under Article 199
has a scope
distinct from its appellate jurisdiction-Held: Unless exercise of discretion by
President under Article 58(2)(fc) of Constitution is shown to be malafide, frivolous,
capricious, vaxatious or arbitrary, power of judicial review will not be available
to High Court to interfere with discretion, (per
M.Mahboob
Ahmad J). [P.52]P
(xxxi) Constitution of Pakistan, 1973-
—Art.199 read with Art.58 (2)(fe)-National
Assembly-Dissolution of- Challenge
to-Whether newspaper clippings/reports cannot be read in present proceedings for determining soundness/validity of
opinion formed by President—Question
of—In cases of constitutional nature, matters have to be decided on affidavits of parties as also on such
material which in attendant circumstances
of cases, can be referred to or relied upon-Newspaper clippings/reports relied upon by Federation, are
undcnied reports of events of
PPP Government's tenure and have not,
in any manner, been rebutted by petitioner-Held: Reference to newspaper
clippings/reports cannot be refused and material available therefrom can
be referred to for purpose of examining soundness
and validity of grounds taken in order of President. (Per M.Mahboob Ahmad J). [Pp.65&66]AE
1986 SCMR 1736 not attracted. PLD
1976 SC 57 rel.
(xxxii) Obiter Dicta-
—National Assembly-Dissolution of~Challenge to-Whether observations of the learned Chief Justice in Saifullah's
case that if only one of grounds for dissolution
of Assembly is non-existent, order as a whole should be struck down, amount to
principle or obiter dicta--Question of—Application of this principle may vary from case to case and would
only be aptly attracted where it is
shown that grounds forming basis of an order are so intertwined and inseverable
that each one of them cannot be taken as an independent ground-
Held: Question as to whether an order as a
whole should be struck down if one of grounds is found to be non-existent or
vague, was not in issue in Saifullah's case
and observations would, therefore, be obiter only. (Per M.Mahboob Ahmad J). [Pp.55&56]W
PLD 1989
Halsbuny's Laws of England, 4th Edition, Vol.1, Para 26, at Page 29, Administrative Law by H.W.R. Wade, 6th Edition, at Page 338, (1983) 1 Q.B.570, (1972) 1 All E.R. 225, PLD 1951 Lahore 17, 1966 SC 793, PLD 1975 SC 506, AIR 1963 SC 779, AIR 1967 SC 1353 and AIR 1976 SC 232 rel.
(xxxiii) Words and Phrases-
—Word "also" as used in Article 58(2) of Constitution-Meaning and scope of- Word "also" has a special significance-President's power to dissolve National Assembly under Article 58(1) is dependent upon advice of Prime Minister- Power under Article 58(1) is exercisable by a conjoint action of Prime Minister and President-Held: Use of word "also" in Article 58(2) would, therefore, clearly spell out that President has an additional power to dissolve National Assembly independent of advice of Prime Minister. (Per M.Mahboob Ahmad J). [Pp.60&61]Z
Raja Muhammad Anwar, Advocate, assisted by Mian Abdus Sattar Najam, Mr.Shahid Iqbal, Syed Sharif Hussain Bokhari and Mr.Naseer Ahmad, Advocates for Petitioner.
Dr. Abdul Basit, Advocate for Petitioner (in W.P. 5849 of 1990).
Mr^Aziz A.Munshi, Attorney General of Pakistan, assisted by Ch.Muhammad Farooq, Sh~Abdul Mannan, Mr.Faqir Muhammad Kliokhar and Ch. Ijaz Ahmad, Deputy Attorneys General, and Ch. Fazal Hussain, Advocate for respondent No.l
Mr.S.M.Zafar & Syed Zahid Hussain, Advocates for respondent No.2
Agha Muhammad Dilawar KJian, applicant in person (in C.M.4166 of 1990).
Mr.Muhammad Ismail Qureshi, Advocate (in C.M.4233 of 1990).
Mr.Saifullah, applicant in person (in C.M.4345 of 1990).
Mr.Rafiq Ahmad Bajwa, Advocate (in C.M.4447 of 1990).
Rai Muhammad Nawaz KJwral, Advocate (in C.M.4560 of 1990).
Date of hearing: 22,23,24,25,26,29 and 30.9.1990 and 1,6,7,8,9,10,13 and 14.10.1990.
judgment .
Muhammad Rafiq Tarar, C J.-On the eve of 6th August 1990, the President of Pakistan issued Order under Article 58(2) (b) of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution) whereby he dissolved the National Assembly of Pakistan and, in consequence, the Prime Minister and her Cabinet ceased to hold office with immediate effect. The Order, passed by the President on 6th August 1990, reads:-
"The President having considered the situation in the country, the events that have taken place and the circumstances, 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
utility and efficacy of the National Assembly as a representative institution elected by the people under the
Constitution, and its mandate, is
defeated by internal dissensions and frictions, persistent and scandalous 'horse-trading'
for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention
of the Constitution and the law, and
by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and
further the National Assembly has
lost the confidence of the people.
(b)
The Constitution envisages the Federation and the
Provinces working within the spheres respectively assigned to them with clearly
delineated executive and legislative authority; and with a view to safeguarding
the structure
of the Federation also contains special provisions of mandatory nature to ensure and
protect the authority granted to the Provinces, by creating specific
constitutional institutions consisting of Federal and Provincial representatives, but the
Government of the Federation has wilfully
undermined and impaired the working of the constitutional arrangements and usurped the authority of the
Provinces and of such
institutions, resulting in discord,
confrontation and deadtock, adversely affecting
the integrity, solidarity and well-being of Pakistan, in that, inter alia:-
(i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its constitutional functions and exercise its powers despite persistent demands of the Provinces, and Parliament has aiso not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161.
(//) The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory constitutional processes in the matter of allocation of shares of revenues to the Provinces despite their persistent demands.
(Hi) Constitutional powers and functions of the Provinces have been deliberately frustrated and extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the Peoples' Programme.
(/v) The Senate, which is representative of the Federating Units under Article 59 and is an integral part of Parliament, has been ridiculed and its constitutional role has been eroded.
(c) Corruption and
nepotism in the Federal Government, its functionaries and Authorities and
Agencies, statutory and other corporations including Banks, working under
its supervision and control and the holders of representative offices has
reached such proportions, that the orderly functioning of the Government in accordance
with the provisions of the Constitution including the requirements of the Oath
(s) prescribed therein, and the
law, does no longer carry public faith and credibility and
despite being subject to wide
public condemnation, the Government has failed
to take appropriate action in this behalf.
(d) The Federal
Government has failed in its duty under Article 148(3) of the Constitution to
protect the Province of Sind against internal disturbances and to ensure that
the Government of that Province is carried on in accordance with the provisions of Constitution, despite the
heavy loss of life and property, the rule of
terror in urban and rural areas, riots, arson/ dacoities, kidnapping for ransom, politics of violence among citizens
and widely condemned failure of the
Provincial Government and its law
enforcing agencies,
and also, in
this behalf, failed
to act under appropriate provisions of the Constitution.
(e) The Government of the
Federation has violated the provisions of the Constitution and the law in that:-
(/) The Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence.
(//) Authority, 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 gains.
(Hi) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 and 242.
(iv) The powers under Article 45 have been exercised by the Government without prior approval of the President.
Now, therefore, I, 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 dissolve the National Assembly with immediate effect; and the Prime Minister and the Cabinet cease to hold office forthwith."
The afore-mentioned Order of the President was challenged in this Court by Kh. Ahmad Tariq Rahim, ex-Federal Minister for Parliamentary Affairs, Government of Pakistan, through Writ Petition No.6228 of 1990, Mr. Zair Sikandar Khan, Advocate, through Writ Petition No.6257 of 1990 and Wokala Mahaz barai Tahafuz Dastoor through Writ Petition No.5849 of 1990. The first two petitions were admitted to regular hearing by a Division Bench of this Court on 2nd September 1990 and were referred to the Chief Justice for constitution of a larger Bench as the questions raised therein were of vital public importance. The third writ petition.(No.5849 of 1990) was also admitted to regular hearing on 18th September 1990 and directed to be put up along with aforesaid Writ Petition No.6228 of 1990.
The Order of the President was also assailed in the Peshawar High Court by Mian Muzaffar Shah, ex-Minister of State, Government of Pakistan, through Writ Petition No.351 of 1990 and by Wokala Mahaz barai Tahafuz Dastoor through Writ Petition No.379 of 1990. Similarly, constitutional petitions were also filed in Sind and Baluchistan High Courts impugning the aforesaid Order.
The Federation of Pakistan thus invoked the jurisdiction of the Supreme Court under Article 186A of the Constitution for consolidation of the cases, pending in the four High Courts for disposal. On 15th September 1990, on the move of the Federation of Pakistan for consolidation of the cases, the Supreme Court transferred the above-mentioned two writ petitions pending in the Peshawar High Court to this Court and the writ petitions pending in Baluchistan High Court were transferred to Sind High Court for disposal.
By this order we propose to dispose of the afore-mentioned five writ petitions together.
2. Mian Muzaffar Shah and Kh. Ahmad Tariq Rahim petitioners controverted the allegations levelled in the impugned order, passed by the President, dissolving the National Assembly. In nut-shell, it was pleaded that the former Federal Government having majority in the National Assembly enjoyed confidence of the people, it passed the current Federal Budget for the year 1990-91, provided political stability, enhanced the prestige of Pakistan in world community and endeavoured to achieve socio-economic development in the country when, all of a sudden, the President issued the Dissolution Order, ostensibly under clause (2)(b) of Article 58 of the Constitution contrary to the law declared in Haji Muhammad Saifiillah Mian's case (PLD 1989 S.C. 166 = PLJ 1989 SC 170) by the Supreme Court of Pakistan. It was submitted that the Dissolution Order was void, mala fide, based on reasons which were extraneous, vague, fanciful and having no nexus with the conditions prescribed in Article 58(2)(b) of the Constitution.
Mr.Zair Sikandar Khan petitioner pleaded that the grounds mentioned in the impugned Order could not stand the scrutiny of closer examination nor could provide justification for the Order dissolving the National Assembly. He submitted that the Dissolution Order was unconstitutional, mala fide and passed in abuse of the powers vested in the President. In the alternative, it was pleaded that in case the Dissolution Order was held valid, the elections, scheduled to be held on 24th October 1990, should not be allowed to be postponed, notwithstanding the commencement of the process of accountability of the members of the ousted Government or National Assembly.
The constitutional petitions, filed on behalf of Wokala Mahaz barai Tahafuz Dastoor, challenged the validity of the Eighth Amendment Act, introduced in 1973-Constitution, on the ground that it contravened the provisions of Article 239 of the Constitution. It was submitted that the impugned order having been passed in exercise of jurisdiction derived from the amended Article 58 of the Constitution, was liable to be declared unconstitutional and of no legal effect.
3.
The Federation
of Pakistan filed
written-statement and annexed therewith
several documents to support the impugned order and controvert the allegations levelled in the writ petitions. It was
pleaded in the written-statement that the President, in pursuance of
clause (2)(b) of Article 58 of the Constitution, had formed an opinion that a situation had arisen in which Government of Pakistan
could not be carried on in accordance
with the provisions of the Constitution and passed the Dissolution Order
in exercise of his discretion which was
valid and that the adequacy and sufficiency of the reasons for the Dissolution Order
were not justiciable. Reference was made in detail to the existence of facts, like
corruption and horse-trading among the members of the National Assembly, misuse of DIB Secret Service Funds and PAF and PIA
aircrafts during No- confidence
Motion against the former Prime Minister, non-convening of meetings of Council of Common Interests (hereinafter called
CCI) and National Finance
Commission (hereinafter called
NFC), ridiculing the Senate
and Judiciary, undermining the Civil Service structure and
Service of statutory corporations, taping telephones of dignitaries and
political personalities, non-giving of powers under
Article 245 of the Constitution to the army already deployed to control internal
disturbances in Sindh and existence of unabating confrontation between the Federal Government and two of the Provincial
Governments, to show that the President had rightly exercised his jurisdiction
to dissolve the National Assembly, appoint Care-taker Cabinet and fix the 24th
of October 1990 for fresh elections.
4.
Before
highlighting the contentions advanced by the learned counsel for the parties and examination thereof, it appears
appropriate to refer to the legislative history of Article 58 of the
Constitution, under which the President of Pakistan
passed the impugned Order dissolving the National Assembly. Article 58, as amended, refers to Article 48. It will be useful
if these Articles of the Constitution, before Amendments introduced
therein, are reproduced hereunden-
"48. President to act on advice, elc.--
(1)
In the performance of his functions, the President shall
act on and in accordance with the advice of the Prime Minister and such advice shall
be binding
on him.
(2) The question whether
any, and if so what advice was tendered to the President by the Prime Minister shall
not be inquired into in any Court.
(3)
Save as otherwise provided in any rules made under
Article 99, the orders of the President shall require for their validity the
counter-signature of the Prime Minister.
58. Dissolution of National Assembly. —
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 resolution for a vote of no-confidence has been moved 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 or a Federal Minister performing the functions of Prime Minister under clause (1) or clause (3) of Article 95."
Undoubtedly, before 5th July 1977, the 1973-Constitution remained in vogue in Pakistan but on that day General Muhammad Zia-ul-Haq, who was then the Chief of the Army Staff, proclaimed Martial Law throughout the country and assumed the office of the Chief Martial Law Administrator. The Constitution was held in abeyance, the National Assembly and the Senate were dissolved and the Prime Minister and Ministers of his Cabinent were dismissed from their offices. On the same day, the Laws (Continuance in Force) Order, 1977, was issued with a declaration that the country would be governed, as nearly as may be, in accordance with the provisions of 1973-Constitution, notwithstanding its holding in abeyance and subject to any Order issued by the President and Martial Law Regulations issued by the Chief Martial Law Administrator.
On 23rd March 1981 the Chief Martial Law Administrator promulgated the Provisional Constitution Order. Apart from other provisions, it contained certain Articles of 1973-Constitution and thereby was transformed into a self-contained document. It provided validity to all Orders and Regulations, including the Proclamation issued on 5th July 1977, imposing Martial Law in the country by the Chief Martial Law Administrator. The powers of the Superior Courts regarding judicial review of orders passed, actions taken and proceedings held by Martial Law authorities were curtailed. As a matter of fact, immunity was provided to them from challenge before any Court, including the Supreme Court of Pakistan. That Order further nullified the effect of any order or judgment passed by any Court, questioning the validity of the constitutional Amendments and jurisdiction of Military Courts. Thereafter, the country was governed in accordance with the provisions of this Order until the 2nd of March 1985, on which date the Pi esident promulgated an important legal instrument, known as the Revival of the Constitution of 1973 Order, 1985 (Presidential Order No. 14 of 1985), which introduced extensive Amendments in 1973-Constitution. The Amendments formed part of the Schedule appended with the Order. Articles 48 and 58 were also amended. These Articles, as amended by Presidential Order No.14 of 1985, read as follows:-
"48. President to act on the advice, etc.--(l) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet, the Prime Minister or appropriate Minister.
Provided that the President may require the Cabinet to reconsider or consider such advice, as the case may be, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration or consideration".
(2) 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.
(3) If any question
arises whether any matter is or is not a matter in respect of which the President
is by the Constitution empowered to act in his discretion, the decision of the
President in his discretion shall be final, and the validity of .anything done by the President shall not be
called in question on the ground that he
ought or ought not to have acted in his discretion.
(4) The question whether
any, and if so what, advice was tendered to the President by the Cabinet, the Prime
Minister, a Minister or Minister of State shall not be inquired into in, or by,
any court, tribunal or other authority.
(5)
Where the President dissolves the National Assembly, he
shall, in his discretion,--
(a) appoint a date, not
later than one hundred days from the date of dissolution, for the holding of a
general election to the Assembly; and
(b)
appoint
a Care-taker Cabinet.
(6) If, at any time, the
President, in his discretion or on the advice of the Prime Minister,
considers that it is desirable that any matter of national importance should be referred to a
referendum, the President may cause the
matter to be referred to a referendum in the form of a question that is capable of being answered either by 'Yes' or
'No'.
(7) An Act of Majlis-e-Shoora (Parliament) may
lay down the procedure for the holding of a
referendum and the compiling and consolidation of the result of a referendum.
58. Dissolution of National Assembly.--
(1) 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 Prune 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 resolution for a vote of no-confidence has been moved 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) The President may
also dissolve the National Assembly in his discretion
where, in his opinion, an appeal to the
electorate is necessary".
The Amendments made in the Constitution, including those pertaining to Articles 48 and 58 by Revival of the Constitution of 1973 Order, 1985, gave rise to enormous criticism in the public. The members of the National Assembly, elected on non-party based general elections, took cognizance of the issue and moved a Bill in the National Assembly, which is commonly known as the Constitution(Eighth Amendment) Bi|l of 1985. With special reference to these Articles, it purported to curtail the unfettered powers of the President for dissolution of the National Assembly in his discretion and immunity accorded to such action from judicial review. The non obstante clause, prefixed in sub-Article (2) of Article 58, to the effect: "Notwithstanding anything contained in clause (2) of Article 48" placed limits on the powers of the President to dissolve the National Assembly. Similarly, clause (3) of Article 48, which made the President sole arbiter of the validity of his discretion, was deleted. Article 58(2)(fe) was also modified in a manner that the National Assembly could be dissolved only when the Government of Federation could not be carried on in accordance with the Constitution and appeal to the electorate was necessary.
The finally adopted provisions of Articles 48 and 58 by the Parliament in the Constitution (Eighth Amendment) Act, 1985, were of the following effect:-
"48. President to Act on advice, etc.--
(1) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet (or the Prime Minister).
Provided that the President may require the Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(2)
Notwithstanding
anything contained in caluse (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.
(3)
Omitted.
(4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority.
(5) Where the President dissolves the National Assembly, he shall, in his discretion-
a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly, 4 and
(b) appoint a care-taker Cabinet. (6) If, at any time, the President, in his discretion, or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may causethe matter to be referred to a referendum in the form of a question that " is capable of being answered either by 'Yes' or 'No'.
(7) An act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum.
58. Dissolution of National Assembly.--
(1) 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.
£xp/fl/iario/i-Reference in this Article to 'Prime Minister' shall not be construed to include reference to a Prime Minister against whom a notice of a resolution for a vote of no-confidence has been given in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly.
(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,—
(a) A vote of no-confidence
having been passed against the Prime Minister, no other member of the National
Assembly is likely to command the confidence of the majority of the members of
the National
Assembly in accordance
with the provisions
of the Constitution 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".
It is significant to point out that on the 29th of May 1988 General Muhammad Zia-ul-Haq, the late President of Pakistan, for the first time, invoked Article 58(2)(5) of the Constitution and dissolved the National Assembly, dismissed the Prime Minister and his Cabinet and passed Order to the following effect:-
"Whereas the objects and purposes for which the National Assembly was elected have not been fulfilled;
And whereas the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss of property;
And whereas the life, property, honour and security of the citizens of Pakistan have been rendered totally unsafe and the integrity and ideology of Pakistan have been seriously endangered;
And whereas in my 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. Now, therefore, I, General Muhammad Zia-ul-Haq, President, in exercise of the powers conferred on me by clause (2)(fo) of Article 58 of the Constitution of the Islamic Republic of Pakistan hereby dissolve the National Assembly with immediate effect and in consequence thereof the Cabinet also stands dissolved forthwith".
Simultaneously, the Governors of all the four Provinces of Pakistan also dissolved the Provincial Assemblies and dismissed the Provincial Cabinets. The aforementioned Orders of Dissolution of the National Assembly and that of the Punjab Provincial Assembly were challenged by Kh.Muhammad Sharif and others through Constitutional petitions, and a Full Beach of this Court in case Muhammad Sharif V. Federation of Pakistan (PLD 1988 Lahore 725) declared the impugned Orders of Dissolution of the Assemblies not sustainable in law but, for the reasons recorded in the order, declined to restore the Assemblies. The Federation of Pakistan as well as Haji Muhammad Saifullah Khan etc. preferred appeals before the Supreme Court against the aforesaid order. The Supreme Court in the case Federation of Pakistan V. Muhammad Saifullah Klian (PLD 1989 S.C.166) maintained order of the High Court holding that the power to dissolve the National Assembly under Article 58(2)(£>) of the Constitution was discretionary, which could be exercised by the President without the advice of Prime Minister but his opinion for the exercise of discretion must be based on some material. The superior Courts can examine the validity of the reasons, forming basis of the opinion. In this regard the Supreme Court observed:-
"...,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)(Z?) has arisen which necessitates the grave step of dissolving the National Assembly".
The grounds, mentioned in the Order of the President dissolving the National Assembly, on examination by the Supreme Court were found to have no nexus with the pre-conditions prescribed by Article 58(2)(fe) of the Constitution empowering the President to dissolve the National Assembly in his discretion. The Supreme Court, therefore, approved the observations of the Lahore High Court, that the grounds mentioned in the Order were vague, indefinite, too wide and general which could be urged at any time for dissolving the National Assembly. It was further held that nothing was shown that the machinery of the Government of Federation had come to stand-still or such a break-down had occurred which prevented the orderly functioning of the Constitution. It was declared that all the grounds forming the basis of opinion of the President to exercise discretion for dissolution of the National Assembly were extraneous to and had no nexus with the pre-conditions prescribed by Article 58(2)(fe) of the Constitution. It was held that no grounds existed on the basis whereof an honest opinion could be formed justifying dissolution of the National Assembly. It was thus declared that the exercise of the power by the President in dissolution of the Assembly was unconstitutional and open to correction through judicial review. With regard to the consequential relief, following the declaration that the dissolution of the National Assembly was unconstitutional, the Supreme Court held that the national interest would be better served by recourse to the electorate than by restoration of the existing Assemblies, provided the fresh general elections were held on the dates already specified by the Election Commission.
5.
With this background about the relevant provisions of the
Constitution and their interpretation by the Supreme Court, the task of this Court to
examine the
validity of the impugned Order of the President, dissolving the National Assembly by invoking
the same provisions of the Constitution, has become rather easier. This Court
has to concentrate on the material placed before it, which was taken into
consideration by the President for forming honest opinion that the Government of
Federation could not be carried on in accordance with the provisions of the Constitution. As to the
reasons given in the Order, whether they disclose
direct nexus with the pre-conditions, prescribed in Article 58 of the
Constitution, this Court is not to sit
in appeal over the impugned Order of the President nor to substitute its own findings for the Order of the President.
Now, the stage is set for examination of the precise submissions of the
learned counsel for the parties made at the Bar, in the light of documents on
the file.
6.
Raja Muhammad Anwar, learned counsel for KhAhmad Tariq
Rahim and Mian
Muzaffar Shah, former
Ministers of the Federal
Government, challenged the validity of the impugned Order, whereby the President of
Pakistan dissolved the
National Assembly. He addressed the Court at some length, but the precise contentions urged by him are as follows:-
(1) The existing
circumstances and events at the relevant time did not warrant dissolution
of National Assembly, as envisaged
in Article 58(2)(b) of the Constitution;
(2) the grounds mentioned
in the Order of 6th August, 1990, dissolving the National Assembly, were
factually incorrect and had no nexus with the preconditions set out in Article
58(2)(fo) of the Constitution;
(3) there occurred no
Constitutional break-down paralysing the Government of the Federation so
as to take the gave step of dissolving the National Assembly;
(4) the allegations
contained in the impugned Order are based on documents of no evidentiary value because the same
are either newspaper-clippings or inter-departmental secret communications;
(5) the non-convening
of the meeting of CCI occurred
due to non- cooperation of the Provincial Governments.
The dispute in this behalf being sub-judice in the Supreme Court, could not form
basis of the Dissolution Order;
(6) the National Finance
Commission was constituted within the stipulated period of five years and before it
could convene its meeting, the National Assembly was dissolved;
(7)
if the President noticed corruption, nepotism, defection
of members of the Assembly and horse-trading, he could resort to other remedies to ameliorate the situation
rather than to dissolve the National Assembly;
(8) the validity of
the entire impugned
Order dissolving the National Assembly, would stand vitiated if one of the
grounds was found to be faulty, non-existent or extraneous. In the instant case
some of the grounds forming basis of the impugned Order, being factually
wrong, rendered the Order as a whole viod;
(9) the impugned Order
was male fide which was apparent from the fact that the leader of
Opposition, an arch enemy of the former Prime Minister, was appointed as care-taker Prime
Minister; and
(10) the allegations regarding misappropriation of Secret Service Funds, ridiculing the Senate, the Judiciary and undermining the Civil Service structure were non-existent and could not serve (as) basis for the dissolution of the National Assembly.
7.
In response to the first contention of the learned
counsel for the petitioners, the learned Attorney-General referred to the principle,
enunciated in Haji Muhammad Saifullah Khan's case (PLD 1989 S.C.166=PLJ 1989 SC 170), to the effect that the
President has first to assess the situation and form an opinion objectively that the
Government of Federation cannot be carried on in accordance with the provisions
of the Constitution, he is empowered under the Constitution to dissolve the
National Assembly in his discretion. We find force in the submission of the learned
Attorney-General and, in the light of the pronouncement made by the Supreme Court in
the aforesaid case, observe that if situation arises where the Government of
Federation cannot be carried on in accordance with the provisions of the Constitution,
it is the prerogative of the President to dissolve the National
Assembly, provided
the preconditions set
out in Article
58(2)(fe) of the Constitution are fully satisfied.
8.
As for the second contention, that the grounds mentioned
in the Order had no nexus with the preconditions prescribed in the afore-mentioned
Article, the
material placed on the record by the learned Attorney-General, coupled with the
affidavits sworn by M/s Brig. Ahmad Jehan Zib, (Joint Secretary) Director- General Law,
President's Secretariat, Islamabad, and Shahzad Akhtar Joseph, 3 Director Law, President's Secretariat,
Islamabad, shows that the entire material was before the President when he formed
opinion about the situation and passed the impugned Order. So, we find that reasons
forming basis of the Order had direct nexus with the action taken and the pre-conditions
prescribed in the
aforesaid
Article of the Constitution.
9.
We find no merit in the third contention of the learned
counsel, that there was no
Constitutional break-down when
the President invoked
his jurisdiction to dissolve the National Assembly. The facts brought on the
record and
considered by the President justified him to hold that the Government of Federation was unable
to function in accordance with the provisions of the Constitution.
10. So far as the
contention of the learned counsel, that the meeting of the CCI
could not be
convened due to non-cooperation of
the Provincial Governments with the
Federation, the correspondence exchanged among the Chief Ministers of
Punjab, Baluchistan, the former Prime Minister and the President, and
ultimately the suit filed by the Provincial Governments against the Federation in the
Supreme Court of Pakistan, rather indicate that the President was justified to
opine that the Federal Government was responsible for not convening the meeting of CCI until dissolution of the National Assembly. Admittedly, the
important Constitutional institutions, like CCI and NFC, were not allowed to meet nor
function to resolve the disputes resulting in Constitutional crisis and stalemate between the Federal
Government and at least two Provincial
Governments.
10. As to the contention
of the learned counsel, that the documents brought on the file were
inadmissible in evidence being newspaper clippings and inter departmental
communications, suffice it to observe, that the Supreme Court of Pakistan held a
contrary view in Islamic Republic of Pakistan V.Abdul Wali KJian, M.N^4. (P.L.D.
1976 S.C.57(112) which reads:-
"Nevertheless, it cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible particulary where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eye-witness is not readily available. The contemporary newspaper account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of America not because they are 'business records' or 'ancient documents' but because they may well be treated as a trustworthy contemporaneous account of events..."
The inter-departmental communications referred by the learned counsel are declassified documents, open to examination by the Court and were considered by the President before taking the impugned action. He Took notice of the conflicts and events reflected through the correspondence exchanged between the Provincial Government, the Federal Government and the President to form an opinion as to whether the Government of the Federation was functioning in accordance with the provisions of the Constitution. The documents on record were relevant for consideration of the President to form an opinion, and for this Court, to examine if the same had nexus with the pre-conditions set out in Article 58 of the Constitution.
12. About seventh contention of the learned counsel for the petitioners, that there were other remedies available for checking corruption, nepotism, defection of Members, misuse of funds and horse-trading, the learned Attorney-General was right in contending that the President patiently watched the developments and advised the Federal Government time and again to adopt proper course of action but the vices escalated to such a proportion that the very solidarity and integrity of the country was at stake, therefore, the President at that stage had no option but to dissolve the National Assembly in his discretion.
13. The eighth contention of the learned counsel, that if one of the grounds mentioned in the impugned Order is found to be non-existent, the entire Order stands vitiated, is untenable. Government of West Pakistan V. Haider Bux Jatoi (PLD 1969 S.C.210), Keshav Talpade V. Emperor (AIR 1943 F.C.1(8) and Muhammad Mosawwar fOian V. Deputy Commissioner, Gujranwala (PLD 1983 Lahore 102), cited by the learned counsel, are of little help to him as the principle enunciated therein is peculiar to the detention cases. Sher Muhammad V. Bashir AH JQian (PLD 1962 (W.P) Lahore 172), Kahi V. Settlement Commissioner, Lahore (1987 M.L.D.750) and Chan Pir Shah V. Congothene Chemical Industries Ltd. (1981 PLC 981) are distinguishable on facts and the law laid down therein is not applicable to the issues involved in the case in hand.
In Raflq Ahmad v. Crown (PLD 1951 Lahore 17) Mr Justice Muhammad Munir, the then Chief Justice of the High Court of Judicature at Lahore, also expressed doubts about the authenticity of the view and held—
"The logical result of the rule, if it were applied in the unqualified manner suggested in the two cases cited above, would be that, if among ten reasons for the arrest of a person who was believed to be acting in a manner prejudicial to the public safety was an insignificant reason that in addition to the other acts which were calculated to prejudice public safety, he was also engaged in an activity not within the power of the Provincial Government to prevent, the order of arrest will have to be held to be wholly unsustainable. Any such result, in my opinion has to be avoided, because a habeas corpus petition would in such a case be substituting its own judgment for the judgment of the arresting authority in holding that the remaining nine reasons anyone of which could have been a good reason for the arrest were not, individually, or collectively, in fact the reasons on which he could have been arrested, and thus that Court would be taking upon itself a responsibility which under the Statute rests on and vests in some other authority".
The Indian Supreme Court in several cases,
more particularly in Swam Singh v. State of
"There is authority for the proposition that, where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-exisent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existent grounds could not have affected the ultimate decision". Reliance was placed on Stale of Maharashtra v. B.K. Takkamore (AIR 1967 S.C.1353) and State of Orissa v. Bidvabhushan Mahapatra (AIR 1963 S.C.779).
In Muhammad Sharifs case (PLD 1988 Lahore 725) MrJustice A.S.Salam, the then Chief Justice of the Lahore High Court, made a passing remark in the nature of purely obiter dicta. While maintaining the decision of the Lahore High Court, the Supreme Court made no reference to the observation in the judgment. It appears that this point was neither agitated nor convassed before the Supreme Court. The material placed before us rather shows that the action taken by the President is neither tainted with malice nor is in excess of the jurisdiction vested in him. The principle enunciated by the Supreme Court in Chairman, Railway Board ' v. Abdul Majid Sardar (PLD 1966 S.C.725) directly applies and is to the following effect:-
"...it appears appropriate to observe that acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their function examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect".
This rule was followed in Lahore Improvement Trust v. Custodian, Evacuee Property (PLD 1971 S.C.811), wherein it was held that before an order passed by a public authority is struck down, it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order was passed.
14. The ninth contention
of the learned counsel for the petitioners, that the appointment of respondent No.2 (the leader
of the Opposition) as Prime Minister to head
to care-taker Cabinet indicated the mala fide intention of the
President, has no merit because the
provisions of Article 48(5) read with Article 91(8) of the Constitution clearly provide that after the
dissolution of the National Assembly any person can be appointed as
Prime Minister to head the care-taker Cabinet.
15. As to the tenth
contention, that the former Federal Government did not ridicule the Senate
and Judiciary nor it undermined the Civil Service structure, the reference made by the
learned Attorney-General to the documents on the file rather shows that the
former Attorney-General before the Sindh High Court did not acknowledge the legal entity of the
Senate, a seminar was arranged in which the decision of the Supreme Court in
Nawab Muhammad Ahmad Khan's murder case was
publicly ridiculed, and 26,000 persons were appointed in service through the Placement Bureau, contrary to the provisions
of the Civil Servants Rules. We also
find substance in the submission of the learned Attorney-General that the Members of the National Assembly, who had
defected, were appointed Federal Ministers
and huge sums were withdrawn from the Secret Service Funds for
purchasing the loyalty of the Members
at the time of "No-confidence Motion" and Azad Jammu and Kashmir's elections.
16. Dr.Abdul Basit, Advocate on behalf of Wokala Mahaz
barai Tahafuz Dastoor, challenged the vires of the Constitution (Eighth
Amendment Act XVIII of 1985), introduced in 1973-Constitution during the Martial
Law, on the ground that the amendments in the Constitution were made contrary
to the provisions of Article 239 of the Constitution. He stated that the
amendment made in Article 58 of the
Constitution was one of the amendments forming part of the Eighth Amendment Act (XVIII of 1985). It empowered the
President to dissolve the National
Assembly. Previously the power of dissolving the National Assembly did not vest in the President. According to him, it
was unauthorised and had rendered the Constitution unworkable. He
emphasised that the question about the validity of the Eighth Amendment Act has
not so far been decided by the Supreme Court
and referred to observations made by the
Supreme Court in Federation of Pakistan v. Ghulam
Mustafa Miar (PLD 1989 S.C.26). He submitted that the Supreme Court deferred decision on this
point for another occasion. On a question,
he submitted that the mere pendency of the matter before the Supreme Court in Abdul Mujeeb Pirzada's case (PLD
1990 Karachi 9=PLJ 1990 Kar. 14(FB))
arising out of a judgment of the Sindh High Court, is no bar for decision on this issue. The next submission made by him was
that Mr.Ghulam Mustafa Jatoi could not be appointed as care-taker Prime
Minister being leader of the Opposition in
the defunct National Assembly. He was bound to influence the process of the
ensuing elections and thus disqualified to act as Prime Minister. The impugned Order, passed by the President, was
attacked by him only on the ground that the Amendment made in Article 58 of the
Constitution, being part of Eighth Amendment Act, is unauthorised for the
reasons mentioned above. He, however, conceded that the Government of
the Federation was not being carried on in
accordance with the provisions of the Constitution and it indulged in corruption, nepotism and horse-trading for
political benefit.
17. We have considered
the objections raised by DrA.Basit as to the validity of the Eighth
Amendment and observe that this contention was considered by a Full Bench of this
Court in Ghulam Mustafa Kliar's case (PLD 1988 Lahore 49 = PLJ 1987 Lahore
660) and repelled. The Supreme Court while diciding the appeal against that judgment also did not
take a contrary view, but deferred it for decision
on some other occassion. The Sindh High Court in a Full Bench case, Abdul
Majeed Pirzada v. Federation of Islamic Republic of Pakistan (PLD
1990 Karachi 9 = PLJ 1990 Karachi
14 (FB)), also held the Amendments in the Constitution valid. The
matter is sub-judice in appeal before the Supreme Court.
All the learned counsel except Dr.A.Basit,
Advocate, made a joint request to leave this matter for decision by the Supreme Court.
18. Mr.S.M.Zafar,
Advocate, on behalf of respondent No.2, argued for the validity of the impugned order, dissolving
the National Assembly, and defended the
appointment of respondent No.2 as care-taker Prime Minister. He read out Articles 48(5)(fc) and 91(8) of the Constitution
and submitted that after the dissolution
of the National Assembly the President, in exercise of his jurisdiction, has
to appoint a care-taker Cabinet headed by a Prime Minister in his discretion. He could have even allowed the out-going Prime
Minister to continue in office during
the interregnum or appoint any body else as Prime Minister to head the care-taker
Cabinet. He pointed out
that this was
a new provision in the
Constitution whereunder it was obligatory for the President to appoint
care-taker Cabinet. He stated that in UK,
India and Australia care-taker Cabinets are appointed under the residuary powers of the Crown/President, but this is
an improvement in our Constitution
which empowers the President to appoint a care-taker Cabinet headed by the Prime Minister and to fix a date not
later than ninety days from the date
of dissolution for holding general elections to the Assembly. It is the Constitutional obligation of
the President to appoint care-taker Cabinet
so as to retain parliamentary character of the Government, otherwise, after
the dissolution of
the National Assembly,
the Possibility that
the
Government would revert to the
unitary form of Government cannot be ruled out. Learned counsel referred to the rule laid down in Madan Murari Verma v.
Choudhuri Charan Singh and another
(AIR 1980 Calcutta 95) and
contended that the President had
accepted the resignation of the Prime Minister and Council of his
Ministers and asked them to continue "till other arrangements are
made", and not as care-taker Government.
He submitted that it was, therefore, held that the Cabinet could only carry on day to day
administration work. He argued that care- laker Government for all practical
purposes, acts like a full-fledged Cabinet. The only distinction is that care-taker Government is temporary and its
primary function is to hold fair
elections.
We find that if both Articles viz.48(5) and 91(8) are read together, it becomes evident that there is no limitation on the power of the President to appoint any person as Prime Minister. He has thus an absolute discretion to appoint any person as Prime Minister to head the care-taker Cabinet. The appointment of Mr.Ghulam Mustafa Jatoi as Prime Minister during the interregnum to head the care-taker Cabinet is unexceptionable. A care-taker Government is certainly distinct from a Government appointed "till other arrangements are made". After the dissolution of Assembly the care-taker Cabinet being no longer answerable to the House, nevertheless has to perform its functions with full responsibility until permanent Cabinet is formed.
19. Mr.Muhammad Ismail Qureshi, Advocate, and
Dilawar Khan applicant argued in support of
the Presidential Order dissolving the National Assembly. According to them, the Federal Government was not
performing its functions in accordance
with the provisions of the Constitution and Islam, therefore, it was rightly dismissed.
20. Haji Muhammad
Saifullah Khan, ex-MNA, appeared in person and attacked the impugned Order on the
ground that the Assembly could not have been dissolved because it had passed
the Finance Bill. He, however, could not meet the objection, that the former
Government of the Federation failed to do substantial legislative work, with the result
that a number of important Ordinances and Bills were not processed and lapsed.
21. The contentions raised by Mr.Rafiq Ahmad
Bajwa, Advocate, although very instructive
had little bearing on the issues involved in the case. On one hand, he asserted that the President had no jurisdiction
to dissolve the National Assembly and,
on the other,
he maintained that
the Government of the Federation was not being carried on in accordance with the provisions of
the Constitution. What we could gather from the line of his arguments was that
a conspiracy was hatched against the
nation whereby leader of such a party was nominated to form Government, which party
had practically no backing in the Senate
and was thus unable to legislate without the cooperation of the parties in
opposition. The paradoxical
situation inevitably
generated confrontation. He argued that whichever Government is placed
in that situation, would necessarily indulge
in horse-trading and corruption for its survival.
22. After taking into
consideration the background in which the impugned Order dissolving the
National Assembly was passed by the President and the contentions raised by
learned counsel for the parties referred to earlier, in our estimation, the
President had rightly formed an opinion, that a situation had arisen in which the
Government of Federation could not be carried on in accordance with the provisions of
Constitution and passed the Dissolution Order in
exercise of his discretion. The President applied his mind to the facts and accompanying
events and recorded reasons in the self-contained Order. The sufficiency and adequacy of the reasons are not
justiciable, as held by the Supreme
Court in Haji Muhammad Saifullah Mian's case (PLD 1989 S.C.166 =
PLJ 1989 C 170)). The Order dated 29th May
1988 of the late President General Muhammad
Zia-ul-Haq dissolving the National Assembly, is distinguishable from the impugned Order as the former did not satisfy
the preconditions, prescribed by Article 58(2)(f>) of the
Constitution. The Order was thus declared unsustainable by a Full Bench of this Court and maintained in appeal by the Supreme
Court. The grounds incorporated in the Order were held vague,
indefinite, too general having no nexus with
the preconditions prescribed by Article 58(2)(fc) of the Constitution, which
could be made use of, any time for dissolution of the National Assembly.
The impugned Order passed by the President is based on reasons emanating from concrete facts directly relatable
to the action taken.
We have considered the material brought on the record and find no infirmity in the inference drawn by the President, to the effect that the National Assembly lost its significance by its failure to do substantial legislative work, other than the adoption of the Finance Bill. The National Assembly plays a pivotal role in the parliamentary form of Government but the unproductive internal confrontation among the members of the Assembly paralysed the Constitutional set up of the Federal Government and incapacitated the legislature to do its primary business of legislation. It may be mentioned that during its twenty months tenure, out of about fifty Bills/Ordinances, only fifteen could be passed by the Parliament. The rest of thirty-five Bills/Ordinances, some of which were very important like 'Sharia Bill' could not be processed and allowed to lapse. The inability of legislature in this behalf was highlighted by the then learned Attorney-General in press statement, wherein he acknowledged that the majority of the Senate was against the Federal Government, which prevented the Parliament to carry on legislative business. The legislature being one of the important organs of the State, being central forum for settlement of major issues of national importance could not even carry on its primary function of legislation which reflected failure of the Constitutional frame-work.
23. Adverting to the role of the Council of Common Interests, we find that it was for the first time constituted under Article 153 of 1973 Constitution, primarily to strike balance between the rights of Federation and the federating units. A mechanism is in-built in the Constitution to resolve disputes between the Federation and its Units and between the Units inter se. The main object was to insure that the Centre and the Provinces formulate uniform policies in relation to matters in Part-II of Federal Legislative List and (entry 34 electricity) in the Concurrent List. The Council was to supervise the related institutions and to determine the rates at which net profits were to be calculated in terms of Article 161 of the Constitution and to sort out their problems and economic issues in spirit of co-operation while sitting across the table. In case the Council of Common Interests failed to resolve them, the matter could be referred to the joint sessions of the Parliament for final resolution. The documents on the file reveal that the Federal Government, despite repeated demands by three out of four federating units and unanimous resolution of the Senate, failed to call meeting of the Council for settlement of the issues resulting in polarisation and confrontation. The correspondence exchanged between the Chief Ministers, the Prime Minister and the President indicates that there were several subjects, like water and power, royalty of gas and oil, share of electricity and industrial resources, framing of its rules and procedure, which required resolution by the Council. The inaction on the part of the Federal Government to call Council's meeting, obviously put off the settlement of major Centre-Province disputes. In a press-statement the former Federal Law Minister indicated his apprehension that if Council's meeting was called it would open pandora's box.
Similarly, the former Prime Minister, in reply to President's letter, simply mentioned that the meeting would be called and convened at some opportune time The material placed before the Court tends to show that Council's meeting was not called seemingly because if the issues were not resolved in the Council the matter required reference to the joint session of the Parliament and the Federal Government lacking majority in it, might face humiliation. The Provincial Governments, namely, Punjab and Baluchistan, finding no way out had to institute a suit against the Federal Government in the Supreme Court, calling for Council's meeting for settlement of the issues. In this way the requirements of the provisions of Articles 153 and 154 of the Constitution were not adhered to, which generated mistrust between the Provincial Governments, on one hand, and the Government of Federation, on the other. At that juncture the President expressed his concern over the confrontation and political dead-lock between the Federation and the Provincial Governments and dispassionately advised the Prime Minister to redress the grievances of the federating Units.
24. We have also noticed
that the material on the record indicates that the National Finance Commission constituted
under Article 160 of the Constitution, was
not allowed to meet during the tenure of the former Federal Government although
the Prime Minister
was herself its
chair-person. Resultantly, the mandatory
Constitutional process of allocating shares of finance to the Provinces could not be accomplished. The NFC under clause(2)
of Article 160 of the Constitution, was to make recommendations to the
President and the latter to get them
implemented. Non-summoning the NFC meeting gave rise to discord and confrontation
between the Federation and the Provincial Governments, thereby endangering the solidarity of Pakistan.
25. We also find force in
the submission of the learned Attorney-General that launching Peoples Works
Programme, by an executive order, was violative of Article 97 of the Constitution. The
documents on the file show that an amount of Rs.800
crore was allocated for the Peoples Works Programme without legislative backing. The President wrote letters to the former
Prime Minister on 12th July 1989 and
31st July 1989 advising her to advert to the demands of the Provincial Governments
in that behalf. Nothing is available on the record to controvert this plea except that the Federal Government was
empowered to draw and implement social
welfare scheme as per item No.25 of Fourth Schedule of the Concurrent List,
appended with the Constitution. This plea is hardly available in the absence of a legislation by the Federal Government on the
subject.
26. Admittedly, the Senate is a representative of the federating Units and an integral part of the Parliament. It symbolises the unity of Federation and equal status of the federating Units. It is not subject to dissolution and has equal number of members from all the federating Units. The material on the file indicates that unanimous resolution passed by the Senate for calling the meeting of the Council of Common Interests by the Federal Government, was ignored. The former Prime Minister disapproved the resolution of the Senate for providing VIP status to the ex-Senators, and called them as "collaborators of treason". The former Attorney-General's stance on behalf of the Federation, before the Sindh High Court in Abdul Mujeeb Pirzada's case (PLD 1990 Karachi 9(33), was that the Senate had no legal entity. The Members of the Government took oath of their offices to defend the Constitution but their stance in not acknowledging the Senate as a legal entity and a constituent part of the Parliament, is not comprehensible.
27. The material on the record further shows that the former Federal Government ridiculed the Judiciary, for instance, it allowed holding of a seminar where the verdict of the Supreme Court in a decided case, was publicly ridiculed and termed as a "judicial murder".
28. The allegation that the Federal Government misued the resources of the Federation, Prima facie, finds support from the material on the file, indicating the withdrawal of about seventy million rupees from D.I.B.Secret Service Funds, in violation of the relevant Rules, within two days on the occasion of "No-confidence Motion" against the former Prime Minister and disbursement thereof to M/s Malik Waris Afridi, the then Minister of State, Aftab Ahmad Khan Sherpao, ex- Chief Minister of NWFP, Major-General(Retd.) Naseerullah Babar, Special Assistant to the then Prime Minister, and Miss Naheed Khan as also to Mr.Muhammad Hanif Khan, former Federal Minister for Kashmir Affairs, on the occasion of the general elections in Azad Jammu and Kashmir.
Mr.Naseerullah Babar opted to explain the details of the disbursement of the amounts withdrawn from the Secret Service Funds if the proceedings were held in camera. We allowed him to explain in the presence of the learned counsel for petitioners, Mian Abdus Sattar Najam, Advocate, and the learned Attorney-General. He acknowledged the withdrawal of the amounts from the Secret Service Funds but was unable to explain the disbursement thereof in accordance with the instructions on the subject referred to by the learned Attorney-General.
29. Our attention was
also drawn to the documents relatable to the allotment of two hundred and
thirty-seven plots of land in
including
MNAs and their relations, and also to documents showing bank loans worth crores of
rupees, advanced to various persons in violation of the relevant Rules. The documents
on the file further, prima facie, show the misuse of P.A.F., C-130 and P.I.A.
aircrafts carrying eighty-six MNAs and other persons at the State expense
during "No-confidence Motion" against the Prime Minister.
30. It also appears from
the material on record that the former Federal Government
disregarded the provisions
of Articles 240 and
241 of the Constitution.
Article 240 relates to appointments of persons in Service of Pakistan in relation
to the affairs of the Federation, by the Federal Public Service Commission.
This Constitutional institution was
by-passed by making appointments through the "Placement Bureau". Suchlike
arbitrary actions created frustration,
sense of deprivation in the younger generation. Similarly, massive appointments were allegedly made in violation of
the Constitutional provisions and
large number of persons who had been dismissed from service, were re- appointed and re-instated in service, contrary to
Civil Service Rules, 1973.
Furthermore, the Federal Government, contrary to Rules, allegedly made appointments in PIA. One Agha Rafiq Ahmad Khan, who was formerly an Additional District and Sessions Judge, was appointed as Director Administration. Several other persons were also allegedly appointed in statutory corporations and banks in violation of relevant Rules.
31. The Constitution
under Article 14, guarantees that the dignity of man and, subject to law,
the privacy of home, shall be inviolable. The documents on the record show that this
fundamental right was flagrantly violated and disregarded by taping telephones of highly respected
persons, including the Chairman of Senate and
Speaker of the National Assembly. Even members of the Cabinet of Ministers, like the petitioners, were not spared.
This was unethical and un-Islamic act. It was
condemned by former learned
Attorney-General in his
speech delivered by him on
the eve of the retirement of one of the Judges of the Supreme Court. He criticised the use of electronic means
for violation of privacy.
32. Another important
factor, which considerably engaged our attention, was that the Federal
Govt. failed to give powers to the armed forces to combat law and order situation
in Sindh despite advice tendered by the President in that behalf. The President
in his letter dated 28th May 1990, addressed to the Prime Minister, expressed
serious concern over the massacre in Karachi and Hyderabad on 27th May 1990 and
involvement of provincial administration. The material on record pertaining to
the incident, known as Pucca Qila Operation, shows that law and order situation in
Sindh had virtually collapsed. The President advised that the army be given
power under Article 245 of the Constituion, before law and
order
broke down completely, but, despite the President's directive, the former Prime Minister did
not issue any notification to give power to the army, which had already been
deployed in Sindh. Even the former Attorney-General had suggested that the army be
given power enough to deal effectively with the crimes in Sindh. The Federal
Government was under legal obligation, as envisaged under Article 148 of the
Constitution, to protect the Provinces from external aggression and internal disturbances.
The Federal Government did not take measures to restore law and order in
Sindh where dacoities, murders and kidnapping for ransom were allegedly
committed and the crime rate rose six times higher than that in Punjab.
33. The scenario presented by survey of the
available material on the record with reference to the contentions raised by
learned counsel for the parties, is that the last general elections held in
November 1988, on party basis, were contested by the political parties,
including the Pakistan Peoples Party. As a result of polls, the Pakistan Peoples Party emerged a single
largest party although it did not have overall
majority in the National Assembly. The President in his discretion, nominated and invited Ms.Benazir Bhutto to form
Government of the Federation. The
Pakistan Peoples Party formed its Government in Province of Sindh as well as in NWFP but could not form Government in the
Punjab and Baluchistan. In Senate,
the Pakistan Peoples Party had only a few seats. The nation, therefore, expected that the ruling party would merge all
differences with the opposition and
carry the opposition with it in all
matters of national importance. It was obvious that the Government of Federation could not possibly undertake the
legislation without co-operation of
the parties in opposition.
It appears that this naked reality was not given due importance and for reasons which need not be dilated upon here, the ruling party got itself engaged in confrontation with the parties in opposition. The confrontation erupted between the Federal Government on the one hand, and the two Provincial Governments namely, Punjab and Baluchistan, on the other, went on unabated. An inchoate attempt for dissolution of the Baluchistan Provincial Assembly did not materialise because Baluchistan High Court set aside the Dissolution Order, passed by the Governor, and restored the Provincial Assembly. The confrontation between the Federal Government and the above-mentioned Provincial Governments escalated to a great magnitude and took a serious turn. The material on the record shows that efforts were made to win over members of the Assembly by inducement and those who defected were ostensibly rewarded. This exercise gave rise to corruption, horse-trading and misuse of public funds, running into crores of rupees. It posed serious threats to public confidence in the Federation and the national institutions began to crumble. It appears that the parties in opposition, motivated by public opinion in general and finding no way out, moved "No-confidence Motion" against the Prime Minister in the National Assembly.
It goes without saying that in order to foil the move of the opposition, the Federal Government transported the members of the National Assembly to Sawat. They were made hostages, and not allowed to contact any other member of the Assembly. They were thus prevented to exercise freely their right of vote and were brought to the House when "No-confidence Motion" tabled against the Prime Minister was put to voting. By this device the ruling party succeeded in frustrating the "No-confidence Motion". The irony of fate is that when hijacked members of the National Assembly were set at liberty, none of them uttered a single word about their detention or inducement to vote for or against the Motion. This conduct of the members of the National Assembly lowered their prestige in the world.
As a sequel to the failure of the "No-confidence Motion" against the Prime Minister, it was expected that the Federal Government as well as the Provincial Governments, pitched against one another, in the wider national interest would realise that there was no escape from self-destruction if policies of confrontation were not discarded. It could have served an eye opener to the ruling party that the Federal Government had a narrow escape as also to the combined opposition that all efforts made for the success of "No-confidence Motion" failed. The conduct of the members of the Assembly utterly disappointed the nation and attracted public censure. They were elected to solve national problems rather than to indulge themselves in misuse .of national assets for political gains, unmindful of their responsibilities, engaged themselves in confrontation and conspiracies dreadful for the nation at public expense. A wave of non-confidence and mis-trusst gained momentum against the members of the National Assembly. The President was appealed through press time and again to perform his constitutional role to save the country. The President, in turn, repeatedly advised the Federal Government on all the national problems and to redress grievances of the Provinces. On 6th December 1989 the President addressed the joint session of the Parliament and highlighted the problems and performance of the Parliament and the Federal Government. It appears that the Federal Government paid no heed to the timely advice of the President. Even after waiting for over eight months, the President found that the affairs of the Federation were rapidly deteriorating and, finding no way out, on the 6th of August 1990, invoked the provisions of Article 58(2)(b) of the Constitution and dissolved the National Assembly and, in consequence, the Prime Minister and her Cabinet ceased to hold office. He fixed 24th October 1990 as the date for holding fresh elections.
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. If action taken by the President in dissolution of the National Assembly in their estimation is incorrect, the electorate being political sovereign and final obiter may re-elect them with thumping majority.
In our view, the President of Pakistan had validly passed the impugned Order because he had formed an opinion that the Government of Federation could not be carried on in accordance with the provisions of the Constitution and appeal to the electorate was necessary. The grounds weighed with the President for passing the impugned Order had direct nexus with the pre-conditions prescribed by Article 58(2)(fe) of the Constitution.
34. Resultantly, we hold that the impugned
Order, passed by the President of (
There shall be no order as to costs.
M. Mahboob Ahmad, J--I have had the privilege of going through the reasons recorded by the learned Chief Justice in support of the short order rendered by this Court on 14th of October, 1990. While generally agreeing therewith 1 have added my own detailed reasons as well in view of the importance of the case.
The President of Pakistan (hereinafter referred to as the President) on 6th of August, 1990 in exercise of the powers conferred on him by Article 58(2)(b) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) dissolved the National Assembly of Pakistan with immediate effect and also ordered that the Prime Minister and the Cabinet cease to hold Office forthwith. The President formed an 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.
2.
The said order of the President has been questioned before
this Court through Constitutional Petitions Nos. 6228 of 1990, 6257 of 1990 and
5849 of 1990.
3.
Writ
Petitions Nos.351 (Peshawar) of 1990 and 379 (Peshawar) of 1990 were instituted in the Peshawar High Court against
the same order of the President
which by order dated 15.9.1990 of the Supreme Court of Pakistan have been entrusted to this Court to be beared and
decided along with the earlier mentioned
petitions.
4.
By a short order dated 14th of October, 1990 all the five
above mentioned Constitutional petitions have been dismissed. This judgment would give
the
detailed facts and the
reasons for the short order.
5.
Three of these five Constitutional Petitions viz. Nos.6228
of 1990, 6257 of 1990 and 351 (Peshawar) of 1990 only question the validity of the order
of the President
dated 6th of August, 1990, whereas the other two viz. Nos.5849 of 1990 and 379 (Peshawar) of 1990 apart from
challenging the validity of the order also question
the vires of the Eighth Amendment of Constitition brought about by Act XIV of 1985. The challenge to the order of the
President in the later two writ petitions
is not as to the merits thereof but is based on the plea that since the Eighth Amendment by virtue of which Article
58(2)(b) was added to the Constitution is an invalid legislation, the
exercise of power thereunder is without lawful
authority. In the three first mentioned writ petitions the impugned order of the
President has been dubbed as without any legal basis and passed in colourable
exercise of the powers vested in him.
It has been asserted in these petitions that the order of the President is not based on any material whatsoever and
that the same is not sustainable in
view of the principle laid down in "Federation of Pakistan
and others versus Muhammad Saif Ullah KJian and others" reported
as PLD1989S.C. 166=PLJ 1989 SC 170.
6.
These petitions have been resisted by the Federation of
Pakistan as well as by respondent No.2 in Writ petition No.6228 of 1990. The Federation
has filed a
common written statement in all the petitions which is supported by a large number of documents
annexed therewith. It subsequently also filed additional ocuments after the filing of replication by
the petitioners. The contents of the petitions have been controverted on merits
and preliminary objections as to the maintainability of these petitions have also
been raised. Respondent No.2 has filed a separate written statement in Writ Petition
No.6228 of 1990 controverting the contents of the same.
7.
For facility of reference it appears appropriate that the
order of the President be
reproduced verbatim:-
Dissolution Order
"The President having considered the situation in the country, the events that have taken place and the circumstances, 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 utility and
efficacy of the National Assembly as a representative institution elected by the people under
the Constitution, and its mandate, is
defeated by internal dissentions and frictions, persistent and scandalous 'horse-trading' for political gain and furtherance
of personal interests, corrupt
practices and inducement, in contravention of the Constitution and the
law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and
further the National
Assembly has lost the confidence of
the people.
(b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority, and with a view to safeguarding the structure of the Federation also contains special provisions of mandatory nature to ensure and 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 wilfully undermined and impaired the working of the constitutional arrangements and usurped the authority of the Provinces and of such institutions, resulting in discard, confrontation and deadlock, adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter alia:-
(i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its constitutional functions and exercise its powers despite persistent demands of the Provinces and Parliament has also not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161.
(h) The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory constitutional processes in the matter of allocation of shares of revenues of the Provinces despite their persistent demands.
(Hi) Constitutional powers and functions of the Provinces have been deliberately frustrated by extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the Peoples Programme.
(/v) The Senate, which is representative of the Federating Units under Article 59 and is an integral part of Parliament, has been ridiculed and its constitutional role has been eroded.
(c) Corruption and
nepotism in the Federal Government, its functionaries and Authorities and
Agencies, statutory and other corporations including Banks working under
its supervision and control and the holders of representative offices has reached
such proportions, that the orderly functioning of the Government in accordance with the provisions of
the Constitution including the requirements
of the Oath (s) prescribed therein, and the law, does no longer carry public faith and credibility
and
despite being subject to wide public condemnation, the Government has failed to take appropriate action in this behalf.
(d) The Federal
Government has failed in its duty under Article 148(3) of the Constitution to
protect the Province of Sind against internal disturbances and to ensure that
the Government of that Province is carried on in accordance with the provisions of the
Constitution, despite the heavy loss of life and property, the rule of terror in
urban and rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence
among citizens and widely condemned failure of the Provincial Government and
its law
enforcing agencies, and also, in this behalf, failed to act under appropriate
provisions of the Constitution.
(c) The Government of the Federation has violated the provisions of the Constitution and the law in that:-
(i) The Superior Judiciary has been publicy ridiculed and its integrity attacked and attempts made to impair its independence.
(//') Authority, 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 gains.
(///) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 to 242.
(/v) The powers under Article 45 have been exercised by the Government without prior approval of the President.
NOW THEREFORE I, 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 dissolve the National Assembly with immediate effect; and the Prime Minister and the Cabinet cease to hold office forthwith."
8. The learned counsel for the petitioners in Writ Petition No.6228 of 1990 and writ petition No. 351 (Peshawar) of 1990 raised the following contentions:-
(1)
That order of the President of Pakistan dated 6th
August, 1990 dissolving the
National Assembly is not sacrosanct and is subject to judicial review by this Court. He urged that Article 199 of the
Constitution empowers this Court to examine the material which has been
made the basis of the opinion and to see
whether the same could form a basis for passing the said order.
(2)
After laying the above proposition, the learned counsel
submitted that there was no nexus between the grounds taken in the1 impugned
order and
Article 58(2)(b) of the Constitution.
(3) That apart from the
fact that the Council of Common Interests was existing, its non-functioning on
account of the Prime Minister's failure to call its meeting being a question sub judice before the
Supreme Court of Pakistan in a suit filed by
two of the Provinces against the Federation could not be made the basis of the
impugned order. It was in the same context,
submitted that otherwise also no meeting of Council of Common Interests was called for as never any party
brought up a specific matter or
dispute which should have been referred to the said Council. The learned counsel
referring to "Advocate General versus Shabbir Ahmad" reported
as PLD 1963 S.C. 610 submitted that in
fact the taking up of the above ground
as basis of the order dated 6.8.1990 constituted contempt of the Supreme Court.
(4) That the ground in the impugned order
about the non-constitution of the National
Finance Commission is also on the face of it untenable in that the said Commission had been constituted on
25.7.1990 i.e. before the order
dated 6.8.1990 was passed.
(5) That the allegation about the extension of Federal authority into the domain of Provinces which allegedly constituted violation of Article 97 of the Constitution is also without any basis, whatsoever. Elaborating his contention, the learned counsel submitted that Peoples Programme which is referred to as an interference in the domain of the Provinces has been appreciated by the President himself in his address to the Joint Session of Majlis-e-Shura on 2.9.1989 and that otherwise also Article 97 ibid read with item 25 of the Concurrent List empowers the Federal Government to undertake the aforementioned Programme, the same being in the welfare of the masses.
(6) That the allegation
that Senate's role was undermined and the said House was being ridiculed is also
without any valid foundation. Infact the Prime Minister in her speech in the Senate praised the services
rendered by the said House.
(7) That the vague
allegations of corruption and nepotism in the Federal Government cannot also be
a valid basis for dissolving the National Assembly and dismissing the Cabinet
especially when no specific instance of corruption etc. has been cited. It was urged that the two
instances one of Mr. Piracha and the other of Mr. Annhar referred to in the
President's speech are otherwise without
foundation in that in the first case the Supreme Court has expunged the remarks against the Minister of State
whilst the
second case is
a matter pertaining
to the Provincial Government.
(8) Referring to the
allegation of the Government's failure in maintaining law and order in the
(9) That the Federal
Government never ridiculed the superior judiciary publicly
or otherwise and
no attempt was
made to impair
its independence. This allegation has
been vaguely levelled without any specific instance having been
quoted in the
impugned order. The documents
annexed with the written statement to show the ridiculing of the superior judiciary did not in any manner
establish the allegation as these only
show just criticism of judgments of the Courts which is
permissible as the judgment after
having been delivered becomes a public document.
(10) That the alleged violation of Articles 240 and 242 of the Constitution in regard to the civil servants which has been made a ground for the impugned order is not correct as no wrong has been done to any civil servant nor any one of them has been victimised.
(11)
That the alleged violation of Article 45 of the
Constitution of Pakistan about remission of sentences without approval of the
President is also not well based as the remission had been made under the Jail
Manual i.e. Prison Rules, Rule 218 of which Rules read with Section 415 (5) of the Cr.P.C.
empowers the Prime Minister independently to allow remission to prisoners.
(12)
That in any case
there being other remedies available to remove members of the National Assembly
indulging in mal-practices viz. Section 8-B of the Political Parties Act, 1962 and
Articles 63 of the Constitution, the
President could not take action
under Article 58(2) (b) of the Constitution.
(13)
That respondent No.2 could not be appointed 'the caretaker
Prime Minister
and that Mohtarama Benazir Bhutto still continues to be the Prime Minister by
virtue of Article 91(8) of the Constitution read with Articles 48(2) and
58(2)(b) thereof.
(14) That
respondent No.2 should
be stopped from
undertaking/doing anything other than
day to day work as carrying on of other works of Government such as the transfer of officers, the transfer of funds to Provincial Governments out of the People Programme
Fund is in disregard
of the Lahore High Court and Supreme Court judgments in the case of "KJi. Muhammad Sharif versus
Federation of
Muhammad Saif Ullah KJian" reported as PLD 1989 S.C. 166=PLJ 1989 SC 170.
(15)
That all the grounds taken by the President for dissolving
the National Assembly are without foundation and even assuming that some of them have any valid basis then also if one of
them is held to be untenable, the order is liable to be struck down in its
totality on the principle laid down in "Kli.
Muhammad Sharif versus Federation of Pakistan" resported as PLD
1988 Lahre 725, "Government of West Pakistan versus Haider Bux Jatoi" reported as PLD 1969 S.C. 210, "Chan Pir Shah versus Congothene
Chemical Industries Ltd.
etc." reported as 1981 PLC
981, "Sardar Slier Muhammad versus Rao Bashir All Klian and
another" reported as PLD 1962
(W.P.) Lahore 172 and "Muhammad Mosawwar Klian versus Deputy Commissioner, Gujranwala" reported as PLD 1983 Lahore 102.
(16)
That
newspapers reports are no evidence whatsoever unless proved and, therefore, all the clippings annexed with the
written statement have to be ignored. Reference
was made to "Raja
Muhammad Afzal v. C/i. Muhammad Altaf Hussain and others" reported as 1986 SCMR 1736. Annexures A, A/1, A/2 and A/3 as also annex. 'M',
it was urged, are liable to be
ignored as these could not be produced in the Court being secret documents. Reliance in this regard was
placed on "Syed Abual
Aala Maududi versus Tlte State Bank of Pakistan and
another" reported as PLD
1969 Lahore 908.
(17)
That the inefficacy of the order of the President dated
6.8.1990 can be well judged from the fact that both the Political Parties viz. PPP and
IJI have
rejected the mandate of the President regarding the appeal to the electorate by giving
tickets for the forthcoming election to the same persons who were Members of the
dissolved National Assembly; and
(18) That the President of
Pakistan before passing the order had to find with certainty that the
Government of the Federation cannot be run in accordance with the Constitution
which means that it cannot be so run in future and such a situation, in the wake of
the position that already Government had requested for convening of the Assembly,
never existed.
9.
In
the light of the above submissions, the learned counsel urged that the order of dissolution of Assembly is liable to be
struck down and since the situation presently is at variance with the
one which prevailed at the time of dissolution of the last Assembly on many scores, the National Assembly merits to be
restored.
10. The learned counsel
for the petitioner in Writ Petition No.6257 of 1990 generally adopted the contentions of the
learned counsel in the first writ petition. He
additionally contended that Article 58(2)(b) of the Constitution in fact is a residuary provision and the sine qua non
for exercise of this power is that no other course is available to the President. He submitted that the President
should have resorted to Article 63 of the Constitution or to the
Provisions of P.O. Nos.16 and 17 of 1977
read with Section 91 of the Representation of People Act, 1976 or for that
matter to Article 91 of the Constitution of Islamic Republic of Pakistan. The learned counsel elucidated his point of view by
stating that under Article 91(5) of the
Constitution the Presidnet could dismiss the Prime Minister Mohtarama Benazir Bhutto if he had come to the conclusion
that the Federal Government
was corrupt or take action against
the individual Members of the Assembly under Article 63 of the
Constitution or the other provisions available in this regard and that the dissolution of Assembly is a much bigger
punishment which has been nflicted not only on the delinquents but also on
such Members of the National Assembly
who were innocent and above all on the public at large who will be put to
a much bigger inconvenience due to fresh election and which would also be a big drain on the exchequer. The learned counsel
was, however, unable to support his above assertion when he was told
that the provisions of Articles 91(5) and 63 of
the Constitution in no manner confer any powers on the President to take any
action as suggested by him.
11. In the ultimate the
learned counsel submitted that if at all any action was called for, the
President should have taken action under Article 48(6) of the Constitution and
should have ordered referendum to seek a verdict from the electorate about the allegations against
the Prime Minister and her Cabinet.
12. The contentions raised
by the learned counsel for the petitioner in wirt petitions Nos.5849 of 1990
and 379 (Peshawar) of 1990 may be summed up as unden-
(/) That before embarking upon the determination of validity or otherwise of the impugned order of the President, it will have to be first decided as to whether the Constitution in force in Pakistan is the 1973 Constitution with or without the addition of Eighth amendment. He termed the Constitution with Eighth Amendment as "Zia's Constitution of 1985". The learned counsel submitted that he would show that 1973 Constitution without addition of the Eighth Amendment is the only lawful Constitution of the country and that the Eighth Amendment is not an amendment brought about by the due constitutional process envisaged by Article 239 of the Constitution. He in the same breath submitted that it is an ill-based assumption that the vires of Eighth Amendment have been judged by the Supreme Court. He argued that although the vires of Eighth Amendment were considered and upheld in Ghulam Mustafa Khar's case (PLD 1988 Lahore 49=PLJ 1987 Lahore 660) by the Lahore High Court but this question though touched upon by the Supreme Court of Pakistan in appeal against the said order was not conclusively decided.
(//) That no where in the world any parliamentary form of Government is run under a Constitution like the one created in this country through the Eighth Amendment brought about in 1985. He submitted that the power to dissolve an Assembly in all the parliamentary form constitutions such as British. Irish, Japanese, Indian, is vested in the elected head of the Government and the reason behind this vesting of power is that the elected Assembly should look directly to the elected Government head and not to the head of the State. In the same context the learned counsel submitted that if powers under the Constitution such as the one of dissolving the Assembly are conferred upon two entities like the President and the Prime Minister it is nothing less than an attempt to place two swords in one scabbard which in the nature of things is not possible.
(///) That the constitutional amendment brought about in 1985 viz. the Eighth Amendment in the wake of the very tenor of the Revival of the Constitution Order 1985 and the proclamation of withdrawal of Martial Law was intended to remain in field only upto the time the power was not transferred to the elected government and not to be continued in future.
(/v) That the validation of various legislations and indemnification of various acts can only be done after the period of deviation of the Constitution had come to an end and any effort in this regard made before the coming to an end of the deviation period cannot be termed as a proper and lawful validation/indemnification. Reference in this regard was made by the learned counsel to "Siileman & Others versus President Special Military Court No.3 Sibi & Others" reported as NLR 1980 Civil Quetta 873, "Federation of Pakistan versus Malik Ghulam Mustafa fOtar" reported as PLD 1989 SC 26 and "Abdul Mujeeb Pirzada versus Federation of Islamic Republic of Pakistan and 87 others" reported as PLD 1990 Karachi 9 = PLJ 1990 Karachi 14(FB).
(v) That even if the Eighth Amendment is assumed to be effective no power can be exercised under Article 58(2)(b) of the Constitution by the President because the Constitution in the presence of the above Article which is against the established parliamentary form constitutions has been rendered unworkable.
(v/) That without prejudice to the above, even if Article 58 of the Constitution is taken as workable, the appeal to electorate envisaged by this provision indicates appeal through referendum and for that purpose the five questions as detailed in the petition be formulated for reference to the electorate. The learned counsel, however, could not urge anything whatsoever in support of his above contention when he was asked to read the words "appeal to electorate" contained in Article 58(2)(b) conjunctively with the provision of Article 48(5)(a) of the Constitution.
(v/7) On merits of the order of the President, Dr. A. Basit very boldly submitted that Raja Muhammad Anwar, the learned counsel for the petitioner in Writ Petition No.6228 of 1990 and No.351 of 1990 has tried to show that there is no valid or for that matter no basis at all for passing of the order by the President but this position was not correct as there did east-grounds which are valid basis for the order, for example, corruption was rampant and unprecedented; that the people around the then Prime Minister were immoral and created all this trouble for the Government. The learned counsel also submitted that it is very generous to use the word "horse trading" for the misconduct of the Members of the National Assembly and that the appropriate word for the nefarious activities of some Member of the National Assembly infact should be termed as 'Zamir Faroshi'. The learned counsel submitted that the power under Article 58(2)(b) ibid in the circumstances prevailing has been exercised by the President properly, justly and validly as the instances given, like inducements and actual conferment of benefits on some of them to buy their loyalties had occurred.
(vh/) That the appointment of Mr. Ghulam Mustafa Jatoi as caretaker Prime Minister could not have been made as he is the one person out of the 10 crore population of this country who should not have been appointed to this Office. He being leader of the Opposition could only be appointed to this Office if the former Prime Minister had been ousted from Office by a vote of no confidence. The learned counsel submitted that by this appointment the exercise of power by the President though it may otherwise be well founded stood vitiated.
13. On the conclusion of
arguments by the learned counsel for the petitioners in the various writ
petitions, the learned Attorney General took the rostrum. He, opening his address, submitted that the
petition of Kh. Ahmad Tariq Rahim only prays
for a declaration and not for restoration of Assembly. A mere declaration, therefore, even if allowed will be of no
consequence.
14. After the above
submission, the learned Attorney General formulated following
propositions to support the order of the President:-
First, that the order of dissolution of Assembly passed by the President of Pakistan in exercise of a specific power conferred upon him having been based on an opinion that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the Constitution is not open to question Secondly, that the order having been passed by the President after full application of his mind to the prevalent circumstances and he having exercised his discretion under Article 58(2)(b) of the Constitution, the said order of the President is not assailable in the present proceedings;
Tliirdly, that the adequacy and sufficiency of the reasons forming the basis of the order is not justiciable. He said that so it has been held in "Kh. Muhammad Sharif versus Federation of Pakistan" reported as PLD 1988 Lahore 725 and "Federation of Pakistan and others versus Haji Muhammad Saif Ullah KJian and others" reported as PLD 1989 S.C. 166 = PLJ 1989 SC 170.
Fourthly, that all the grounds taken by the President for forming the opinion before dissolving the Assembly have a direct nexus with the various provisions of the Constitution and each one of them sufficiently shows that the affairs of the Federation cannot be carried on in accordance with the Constitution;
Fifthly, that the material before the President, some of which has been placed oo record of the Court, would clearly show that the opinion has been formed by the President objectively and keeping in view all the attendant circumstances and, therefore, the Court, while examining the order of the President in exercise of the powers of judicial review, is not to sit as a court of appeal and is only competent to see whether the grounds disclosed by the President had any nexus with the preconditions laid by Article 58(2)(b) of the Constitution;
Sixthly, that it is too wild a proposition to be advanced in a case of this nature that even if one of the grounds mentioned by the President in his order is found to have no direct nexus with the preconditions laid by Article 58(2)(b) of the Constitution, the Court should strike down the order as a whole;
Seventhly, that if the National Assembly does not function in accord with the provisions of the Constitution, may be on account of the nefarious horse trading or lack of majority of the ruling party in the Senate, there is a constitutional failure and crisis which defeated the working of the Government of the Federation in accordance with the Constitution. As to the inability of the Government to have a bill passed through the Senate, the learned Attorney General drew attention to a statement of the then Attorney General of Pakistan made on 19th of June, 1990 as published in the daily "Nation" wherein it had been accepted that the majority of the Senate Members was against the Peoples Party Government.
It was also pointed out by the learned Attorney General that during the period commencing* 2.12.1988 and ending 6.8.1990 no legislative work worth the name was conducted by the National Assembly and a large number of bills were either allowed to elapse or not processed for presentation. This, he said, was obviously under the fear that the Government would have failed if the bills had been presented. In the same context, the learned Attorney General submitted that the President gave all possible opportunities to the former Government to make amends and work in accordance with the Constitution but these opportunities were not availed of on account of its adamant attitude which compelled the President ultimately to pass the order of dissolution of Assembly on 6th of August, 1990. Had he not done so it may have brought about disastrous results in the country both in the constitutional and economic fields as well as politically;
Eighthly, that the Government of the Federation openly and publicly ridiculed and criticised not only the august constitutional body like the Senate but also ridiculed the superior judiciary in a fashion unprecedented in the history of the civilised world. The ciriticism of the Senate made by the Ministers of the Government by public statements and by openly dubbing the Senate as an invalid House before the Sindh High Court in Abdul Mujeeb Pirzada's case through its Deputy Attorney General/Attorney General and the remarks of the Prime Minister on a summary presented to her in connection with the Senate Members privileges were cited as instances of ridiculing. Similalry, the holding of seminars to criticise the Judges of the Supreme Court and the High Courts in respect of cases decided by them, which seminars were promoted and arranged at the behest of the Federal Government and were presided over by Governor of the Province of Sindh, an appointee of the Peoples Party Government, and attended by the Prime Minister and other Ministers show the scant respect the Federal Government had for the superior judiciary; Ninthly, that the corruption and acts of nepotism, favouritism etc. were so rampant and widely known and even acknowledged by some of the members of the Government party that they need not be elaborated. However, lot of material was available with the President in this respect and some of it has been placed on record of this Court to show the acts of corruption, nepotism, favouritism etc. of the dismissed Federal Government. References made to the Tribunals under Presidnet's Order No. 17 of 1977 were also cited as some examples of such illegal acts;
Tenthfy, that the resources of the Government were misued without any restraint. Reference in this behalf was made to the use of Air Force Planes and PIA Planes during the no confidence motion against the Prime Minister as also to the grossest example of embezzlement which, he said, can be found from the fact that secret funds of Intelligence Agency were withdrawn by the Government during the ho confidence motion days and also during the Azad Kashmir Elections to the tune of crores of rupees and either misappropriated or misapplied for purposes other than for which the funds were meant. Reference was made to Annexures A, A/1, A/2 and A./3 to the written statement.
Yet another example of favouritism and misuse of Government resources was quoted as increase in the discretionary quota of the Prime Minister for allotment of plots in Islamabad and making of allotments to lure the MNAs/MPAs to cross the floor or to support the Government;
Eleventhly, that the corruption and illegal activities of the members of the former Government were so wide spread that even today's associates of the Pakistan Peoples Party like Air Marshal (Retd.) Asghar Khan urged the President to dissolve the National Assembly through a press statement;
Twelfthfy, that one of the most important grounds ;n the order of the President which has a direct nexus with the preconditions of Article 58(2) (b) of the Constitution is the inaction of the Federal Government in calling meetings of the Council of Common Interests and National Finance Commission, the two constitutional institutions charged with the function of resolving the disputes between the federation and the federating units and allocation of shares out of the income of the federaton, which compelled the two federating units to go to the Supreme Court of Pakistan for redress of their grievance;
Tliirteenthfy, that erosion of the fibre and structure of civil services and of the services of the statutory corporations was embarked upon by the Federal Government in such a massive manner that more than 26,000 persons belonging to the Peoples Party only were accommodated in the services of Pakistan, and statutory corporations irrespective of the position that they were legally ineligible to be so appointed or they had no merit for such appointments. The appointments, he said, were in utter disregard of the constitutional provisions of Articles 240 and 242 of the Constitution and the Federal Public Service Commission Act and other legislations governing the statutory corporations services;
Fourteenthly, that in violation of the Constitution, inroads were made into the provincial autonomy by launching Peoples Programme without any constitutional or legislative backing and enforcing the said Programme through its own political workers and such persons who had been defeated in the last general elections to the National and Provincial Assemblies. They had neither any official status nor any legal obligation to be answerable for accounting for the huge funds placed at their disposal;
Fifteenthly, that the provisions of Article 245 of the Constitution were not resorted to by the Federal Government to control the law and order situation in Sindh despite the directions by the President, the advice of the then Attorney General of Pakistan and the views expressed by the then Governor of Sindh which inaction resulted in huge loss of life and property of the citizens and thus a constitutional infringement of a grave nature was committed by the Federal Government rendering the carrying on of the Government in accordance with the Constitution impossible;
Sixteenthly, that the Federal Government flouted the constitutional provisions of utmost importance relatable to fundamental rights by taping the telephones of citizens including the high government functionaries such as the Chairman of Senate, Speaker of the National Assembly etc. and its this desire to intrude into the privacy was so overpowering that even the petitioner, a Minister in the Federal Government, was not spared. The learned Attorney General submitted that Article 14 of the Constitution confers a fundamental right on the citizens to be treated with dignity and ensures privacy to them which was belligerently violated and not only that the grund norm of our Constitution and country's very existence viz, Quranic Injunctions in this regard were also violated which the then Attorney General himself had quoted in his paper published in PLJ 1989 Magazine 118 (May Part); cassettes of taping were produced in support of this submission.
Seventeenth!)?, that the appointment of the Prime Minister heading the caretaker Cabinet having been made by the President in exercise of the discretion vested in him by the Constitution and which is a requirement also according to the Supreme Court dictum in Haji Muhammad Saif Ullah Khan's case is not open to challenge before this Court; and
Lastly, that newspaper reports and clippings can lawfully be referred to for determining the controversy as it has been held to be permissible by law laid down by the Supreme Court of Pakistan in NAP Reference "Islamic Republic of Pakistan versus, Abdul Wall Klian. M.AL4." reported as PLD 1976 S.C. 57. He also placed reliance in this respect on "Ghulam SarwarAwan versus Government of Sind" reported as PLD 1988 Karachi 414 and "Federation of Pakistan and others versus Haji Muhammad Saif Ullah KJian and others" reported as PLD 1989 S.C. 166 = PLJ 1989 SC 170. The case cited by the leanred counsel for the petitioner viz. "Raja Muhammad Afzal versus Ch. Muhammad Altaf Hussain and others" reported as 1986 SCMR 1736 was distinguished by him as based on proceedings of different nature.
15. The learned counsel representing the caretaker Prime Minister (respondent No.2) submitted that while dissolving the National Assembly under Article 58(2)(b) of the Constitution, the President is under a constitutional obligation by virtue of the provisions contained in Article 48(5)(b) thereof to appoint a caretaker cabinet which in the light of Article 91(8) of the Constitution and as held by the Supreme Court of Pakistan in Haji Saif Ullah Klian's case must ^ be headed by a Prime Minister. Mr. S.M. Zafar contended that perusal of Article 48(5)(b) and Article 91(8) of the Constitution shows that the President has the discretion to appoint any person as the Prime Minister and this discretion is not liable to be interfered with by this Court.
16. As regards the powers
and duties of the caretaker Government, the learned counsel contended that the said Government
for all intents and purposes enjoys the same powers as a regular cabinet is vested
with and the only difference is that it has to function during the specified period of
90 days. He referred to various provisions of the Constitution including the oath
of Office of the Prime Minister which is the same for a regular Prime Minister
and a caretaker Prime Minister to support the above contention.
17. In respect of the power of the President to dissolve the National Assembly under Article 58(2)(b) of the Constitution, the learned counsel submitted that the same stands defined by the pronouncement of the Supreme Court of Pakistan in Haji Saif Ullah KJian's case. According to the learned counsel the ratio of the said judgment is that the President has the authority to dissolve the National Assembly; he has to form an opinion before so doing that a situation has arisen in which the Government of the Federation cannot be carried on in accord with the provisions of the Constitution and an appeal to the electorate is necessary; that the superior courts possess the power of judicial review in order to find out whether the opinion formed by the President is such which could be formed by a reasonable person; and that the action to be taken after the forming of the opinion is at the discretion of the President. In this connection, the learned counsel also submitted that exercise of power under Article 58(2)(b) of the Constitution can only be examined in the light of the constitutional provisions of our o%vn Constitution without reference to any other country's case law. He argued that a constitutional phrase has been coined to support the above contention viz. "constitutional autochatoni", which means that every constitution has to have a direct relationship with the genesis of the people.
18. As to the validity of
the impugned order of the President, the learned counsel for respondent No.2 contended
that the same has to be examined in the light of the submissions of the learned
Attorney General as advanced by him in support of the said order. As to the scope
of the examination of the grounds of the order of the President, it was urged by him that this Court is not
required to hold that they are proved to the
hilt and that in the light of the Supreme Court judgment in Haji Saif Ullah KJian's case the court is only to see
whether a reasonable person in the
given circumstances could form an opinion which the President has formd
without any consideration as to whether some other opinion could also be formed.
19. Referring to the inaction
of the Federal Government in the matter of Council of Common Interests, the learned
counsel argued that this was a valid ground for the President to have taken
action. The said ground he said has a direct nexus with the order of dissolution
inasmuch as the marriage of the federation and the federating units was being
rocked by the inaction of the Federal Government which is apparent from the fact that at
least two of the federating units had to resort to an action before the Supreme Court. He
submitted
that this Court without going into the merits of the case before the Supreme Court can consider that the
President could take notice of the acrimony
between the federation and the units and on
this basis resort to an action under Article
58(2) (b) of the Constitution. In support of his above contention the learned counsel relied upon "Mst. Balqis
Fatima V. Najm-ul-Ikram Qureshi" reported as PLD 1959 (W.P) Lahore 566, Mst. Parveen Begum Vs. Muhammad
All reported as PLD 1981 Lahore 116, "Muhammad Rafiq v. Chairman,
Arbitration Council and others" reported as 1986 CLC 1722, and "Mst.
Zarina Gauhar v. Tlie Province ofSind and two others" reported as PLD
1972 S.C. 139.
20. The learned counsel
for respondent No.2 also controverted the plea raised by the learned counsel for the petitioner in Writ
Petition No.6228 of 1990 to the effect that
if one of the grounds of the order of the President out of the many taken by him is found invalid, all other
grounds have also to fall along with and
the order has to be declared a nullity. He submitted that this principle has been
applied in matters of detention and will have no application to a situation of the nature under consideration. Contrarily, he
said that in cases of this nature, the effort of the court irrespective of the
stance of the parties should be to find out the source of validity. To
support the above contention, the learned counsel referred
to "Tlte Chairman, East Pakistan
Railway Board, Chittagong and another versus Abdul Majid Sardar, Ticket Collector" reported as PLD 1966 S.C. 725 and "Lahore
Improvement Trust, Lahore
versus Tlie Custodian,
Evacuee Property, West Pakistan,
Lahore and 4 others" reported as PLD 1971 S.C. 811.
21. In reply to the arguments of DrA. Basil as to the validity of the Eighth Amendment, the learned counsel submitted that this matter has fallen for consideration before the Supreme Court of Pakistan and the various High Courts a number of times. He cited the following cases in which this point has already been considered:-
(/) Rustam v. Vie State (PLD 1986 Karachi 561).
(//") Muhammad Bachal Memon v. Government of Sind through Secretary Department of Food and 2 others (PLD 1987 Karachi 296).
(Hi) Malik Ghulain Mustafa Khar and others v.
(iv) M.D. Tahir vs. Federal Government and 12 others (1989 CLC 1369).
(v) Miss
Benazir Bhutto v. Federation of
(v/) Federation of
(v/7) Sharaf Faridi and 3 others v.
Hie Federation of Islamic
(viii) Abdul Mujecb Pirzada v. Federation of Islamic Republic of Pakistan and 87others (PLD 1990 Karachi 9=PLJ 1990 Karachi 14(FB)).
(or) Abdul Aziz Qureshi Advocate V. Federation of Pakistan and others (PLD 1990 Lahore 488 = PLJ 1990 Lahore 549 (DB)).
and said that in above cases the Eighth Amendment has been either assumed or found to be valid. In the case of "Ghulam Mustafa KJiar" (PLD 1988 Lahore 49 = PLJ 1987 Lahore 660 (FB)), it has been held by a Full Bench of this Court that the Amendment is valid, whilst the Supreme Court in appeal in that case assumed it to be correct. He further submitted that in the case of "Mujeeb Pirzada" decided by the Sind High Court, the Eighth Amendment has been held to be valid although the matter is now pending before the Supreme Court in appeal. He suggested that this point in the aforementioned circumstances should not be examined by this Court and be allowed to be kept at rest.
22. Continuing with his arguments on the above point,
the learned counsel also questioned the locus standi of the
Wokala Mahaz Bara-i-Tahafaz-e-Dastoor to
raise this question especially when the said Mahaz has slept over the
matter itself for over five years
and even the Assembly last formed in 1988 could not get it deleted from the Constitution through
legislative measures. The learned counsel argued that this tendency to have political issues decided through the
Courts should be discouraged as these
are matters of politics which should be settled in the forums provided for the purpose. The learned
counsel emphasised that the politicians
should know their responsibilities and discharge
their functions
honestly as is expected of them and
not burden the courts to undertake this exercise. He gave a note of
caution that the courts should not be lured into these political arenas and keep the stream of justice unpolluted. The learned
counsel also pointed out that by
bringing politicial issues to the Courts which are kept engaged in these issues
genuine poor litigants are put to a great inconvenience and suffering as their matters are kept in
abeyance from adjudication.
We have also heard Mr. Ismail Queshi,
Advocate, Haji Muhammad Saif Ullah Khan, Mr.
Rafiq Ahmad Bajwa, Advocate and Agha Dilawar Khan, who had made applications for being impleaded as
parties before us and in the alternative
to give them opportunity of hearing in the public interest.
Mr. Ismail Qureshi
supported the order of the President on all the grounds as canvassed earlier by the
learned Attorney General. He further submitted that the
dissolved National Assembly having taken no steps for Islamization of laws
and having failed to properly legislate on the subjects of Qisas and Diyat despite
the direction of the Supreme Court of Pakistan had failed to run the Government in
accordance with the Constitution. It was next urged by him that the above
inaction of the Federal Government was a direct violation of the various provisions of the Constitution
including Article 2-A and the Preamble of the
Constitution.
Haji Saif Ullah Khan contended that the order of the President is self- contradicory in that it admits the passing of the Finance Bill and yet says that the legislative work was not being undertaken. He said that the passing of the Finance Bill was a clear reposition of trust in the Assembly and thus there was no occasion for dissolving it.
Mr. Rafiq Ahmad Bajwa, Advocate argued
that the primary matter to be considered by
this Court is not the validity or otherwise of the order of the President dated 6th of August, 1990 but to analyse
the constitutional provisions so as
to remove the anomalies created therein. He submitted that the powers of the President and the Prime Minister have been so
overlapped that these will continue
to give rise to constitutional crisis and failure of democratic system. It was urged by him that the system under the present
Constitution is not Islamic which it
should be as this country has been created with the efforts of Muslims of the
Sub-continent who were given a promise that the Government in this country will be based on principles of Quran and Sunnah,
which promise has not been fulfilled.
Mr. Rafiq Ahmad Bajwa was of the view that the present stage of constitutional crisis is the result of a design of
some nationals in collaboration with foreign elements who fear the
establishment of an Islamic order as this might give
lead to other Islamic countries to
base their governments functioning on Quran and Sunnah.
Mr. Rafiq Ahmad Bajwa submitted that the premises for dissolution of the Assembly had been laid at the very inception of the Assembly when Pakistan Peoples Party which had no majority in the National Assembly was asked to form Government at the Centre and by so doing the said party manipulated to win over some other Members to form a Government and consolidate its position. Simultaneously it was ensured that no legislative work should be allowed to be continued as even though Peoples Party could form a Government in the Federation, it had practically no representation in the Senate and thus no effective legislative work could be undertaken. The stalemate was allowed to continue and when the Shariat Bill was passed by the Senate it was not presented in the National Assembly. Contrarily, the Federal Government tried to sabotage its presentment and passage by the National Assembly by making public speeches to run down the said Bill. It was also ensured, he submitted, that the Shariat Bill should be made subordinate to the Constitution so that in case of a conflict in the existing position of the Constitution and law, the Shariat provisions as contained in the Bill could be got declared ultra vires of the Constitution and thus prove that Shariat is no longer workable.
Mr. Rafiq Ahmad Bajwa
on the merits of the case submitted that the President could invoke Article
58(2)(b) of the Constitution only in case acts to be done for forming the
Government under Article 90 to 100 were not possible or the provisions of these Articles were
violated by the Government and that under no
other circumstance this power should be invoked by the President.
The only other
submission made by him was that meeting of the Council of Common Interests was not called by the
Federal Government obviously under the fear
of Article 153(5) of the Constitution as the Government would have failed in
a joint session of the Parliament and, therefore, this ground may have a nexus with the pre-conditions of Article 58(2)(b) of
the Constitution.
Agha Dilawar. Khan,
who stated that he is a candidate for election to the National Assembly, submitted that the
President's order was well based in law as well
as on facts. He submitted that the President was left with no alternative except to invoke the provisions of Article
58(2)(b) of the Constitution and dissolve the National Assembly as the then Federal Government was not working in accordance with the Constitution. Agha Dilawar
Khan submitted that if Article 31 of the Constitution is read with
Article 227 thereof it will be established that the Government of the
Federation was not
working in accordance
with the Constitution as it failed to constitute Council
of Islamic Ideology- for a very long period during its tenure and that even the
belatedly constituted Council was not in accord with the constitutional provisions.
He next submitted that
Article 32 of the Constitutions was also not adhered to in that the Federal
Government not only failed to promote the Local Government institutions but acted
contrarily so as to undermine the functioning of these institutions by
launching Peoples Programme.
The next contention
of this applicant was that the Eighth Amendment has been rightly adopted by the
Assembly elected in 1985 as it inter alia restored the powers of the High
Courts which had been stifled by the Fifth Amendment made by the former
Peoples Party Government.
Lastly this applicant contended that the
dissolved Assembly in any case cannot be restored as it is the admitted
position of the petitioners themselves that the
Assembly already stands dissolved
whereas in the
case of Baluchistan Assembly
which was restored the plea taken was that the Assembly is still hi existence.
Raja Muhammad Anwar, the learned counsel for the petitioners, in reply to the arguments of the learned counsel for the respondents mainly reiterated his earlier contentions. His only new submissions were that the learned Attorney General has said nothing in support of the alleged violation of Article 45 of the Constitution which is a ground contained in the impugned order of the President; that it was not the dismissed Government which ridiculed the judiciary but the one now holding the reigns which has not confirmed a Judge of the High Court and has removed a Judge of the Supreme Court of Pakistan; and that nothing has been brought on record to show the misuse of authority in the matter of appointments in the statutory corporations.
Raja Muhammad Anwar
thereafter begged leave of the Court stating that Mr. Abdul Sattar
Najam will conclude the arguments in reply.
Mr. Abdul Sattar Najam Advocate only
contended that the provisions of Article
58(2)(b) of the Constitution have to be considered as ejitsdem generis to
the provisions of Article 58(2)(a) of
the Constitution and that the President can invoke this power only in such cases where circumstances similar to
those provided for in paragraph (a)
of clause (2) of Article 58 exist.
Dr. A. Basil Advocate,
in reply submitted that Vokala Mahaz Barai Tahafaz-e-Dastoor is a body of lawyers who are
six in number and being associated with the profession of law are persons deeply
interested in the upholding of the Constitution and ensuring that the Governments are run
in accordance
with the Constitution and that functionaries of State do not exceed their
constitutional/legal jurisdictions. He argued that in the context of his submission the
challenge to the locus standi of the petitioners as made by Mr. S.M. Zafar is not
tenable.
Dr. A. Basil again
emphasising on the invalidity of Article 58(2)(b) of the Constitulion stated
lhat his objection to the order of the President only is on a legal ground
and that the
said order on
merits is otherwise
suslainable. Coniinuing
he submilted thai the actions of the Federal Government in violation of constitulional provisions especially in nol
giving effecl to the functioning of bodies like Ihe Council of Common
Interesls and Nalional Finance Commission can
only be lermed as carrying oul of the Government in violation of the Constitution.
On a conjunctive
examination of the respective contentions raised on behalf of the
various parties to the constitutional petitions under consideration the common questions of
law thai emerge for delerminalion may be summarised as under:-
Whelher Ihe order passed by Ihe Presidenl under Article 58(2)(b)
of Ihe Conslitution of the Islamic Republic
of Pakistan can be judicially reviewed
in exercise of the powers vested in this Court by Article 199 of the Constilulion; if so, Ihe exlenl and scope of
such review?
In case one or more of the grounds which are the basis of the
opinion of the President are not well
founded, whether the order shall be liable to be struck down as a whole or can
it be suslanied on the grounds which are
determined to be valid?
Whal is the true imporl of Ihe words
"also", "discretion" and "opinion" used in Article 58
(2) of the Constitution and of the expressions "carried on in accordance
with the Constitution" and "an appeal to the electorate is necessary" used in sub-paragraph
(b) of Article 58(2) ibid!
(4) Whether reports in the newspapers can be read as part of the record for the purpose of determination of controversies raised in these petitions?
40. Before embarking upon the discussion and arriving at conclusions on the propositions formulated as above, it appears appropriate to refer to the all important judgment on the subject viz. "Federation of Pakistan and others v. Haji Mohammad Saif Ullah TQian and others" reported as PLD 1988 S.C. 166 = PLJ 1989 SC 170. The ratio of the said case may be culled out as under:-
That the President has the constitutional
authority to dissolve the National Assembly in his discretion.
He can exercise this discretion on forming
an opinion 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 superior Courts do possess the power of
judicial review in order to find
out whether the opinion formed by the President was such as could be formed by a reasonable person.
Where the President provides reasons for making an order under
Article 58(2)(b) of the Constitution the
Court can examine the validity of such reasons and if the same are found
to be non-existent or having no nexus with
the perimeter of the exercise of the authority vested in him, the Court may declare the action invalid.
41. The answer to the first part of the first proposition does not, therefore, present any difficulty in view of the above authoritative pronouncement of Supreme Court of Pakistan and in the light of the principles laid down in the said l authority it can safely be held and very respectfully so I do that the order that the () President has passed on 6th of August, 1990 under Article 58(2)(b) of the i Constitution can be judicially reviewed by this Court in exercise of the powers I conferred on it by Article 199 of the Constitution of Islamic Republic of Pakistan.
42. In order to arrive at a correct conclusion regarding the second limb of the first proposition viz. the scope and extent of judicial review, it may be of beneift to examine important judicial precedents on the subject.,
43. In Rahim Shah v. Tlie Chief Election Commissioner of Pakistan and another" reported as PLD 1973 SC 24 considering similar proposition it was observed at page 36 as under:-
"It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts, or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. Tlie scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal."
[Tlie underlining above is by me]
44. Again in "Begum Wazir Ahmad Industrial Home versus Msl. Niaz Begum" reported as PLD 1976 SC 214. Salahuddin Ahmad J., as he then was, speaking for the Court observed at Page 222 as under:-
"The High Court could not interfere with the findings of the Settlement Commissioner even if upon the same facts a different view could be taken.There was neither any jurisdictional defect nor any contravention of any fundamental porinciple in arriving at the impugned findings.".
45. The following passage from the judgment of Supreme Court of Pakistan in "Federation of Pakistan and others \. Haji Muhammad Saif Ullah KJian and others" reported as PLD 1989 S.C. 166 = PLJ 1989 SC 170 as appearing at page 189 may also be usefully reproduced hereunder:--
"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."
46. In Associated Provincial Picture Houses v. Wednesbury Corporation, (1948) 1 K.B 223 it has been held as under at page 228:--
"It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles that discretion, in my opinion, is an absolute one and cannot be questioned in any court of law".
47. The above principle has been followed in Luby v. Newcastle-Under-Lyme Corporation. (1964) 1 All E.R. 84. The following observations appearing at page 89 of the report in the above judgment may usefully be reproduced hereunder:—
"The court's control over the exercise by a local authority of a discretion conferred on .the authority by Parliament is limited to ensuring that a local authority have acted within the powers conferred. It is not for the court to substitute its own view of what is a desirable policy in relation to the subject matter of the discretion so conferred. It is only if it is Here in italics exercised in a manner which no reasonable man could consider justifiable that the court is entitled to interfere."
A review of the case law on the sujbect
clearly shows that judicial review contemplated for exercise of constitutional
jurisdiction by this Court under Article 199 of the Constitution has a scope distinct
from its appellate jurisdiction. The power of judicial review cannot be over
stretched so as to make this Court an appellate forum against the order passed by
the competent authority under the Constitution viz. the President in the
instant case, so as to substitute his opinion by the opinion of the Court. The scope
and extent of judicial review, to my mind, would only be to the extent that the Court has
to find out whether the opinion formed by the President is honest and is such
which could be formed by a reasonable
person keeping in view the attendant circumstances. If there be some material on the basis of which an opinion could be
reasonably formed by the President, then the Court cannot interfere
therewith merely because another view may be possible. Similarly, unless the
exercise of discretion is shown to be mala fide,
frivolous, capricious, vexatious
or arbitrary, the power of judicial review will not be available to this
Court to interfere with the discretion.
Before parting with this aspect of the case it may be observed that some of the learned counsel for the petitioners attempted to argue that the powers conferred upon the President under Article 58(2)(ft) ibid do not fit in the Q Constitution of a Parliamentary form of Government and thus the same should be construed so as to practically divest the President from exercise of this power. I do not see any force in this submission on two-fold basis:—
That this Court being a creation of the Constitution itself can neither add to it nor substract therefrom in any manner whatsoever as the power exercisable by this Court under Article 199 is subject to the Constitution; and
(2) That the premises that such a power does not exist in constitutions of other parliamentary forms of governments is wholly irrelevant inasmuch as the Constitutions of other countries having a parliamentary form of government cannot be read into our Constitution. Apart altogether from the above position, the Constitution of every country is framed to suit the genesis of its people who are to be governed therewith and it is not in all cases necessary or for that matter even possible that the parliamentary form of Government in every country should be run on some general principles of parliamentary forms even where constitutional provisions are different.
50. In the formation of my above view I find support from the comments in "The Constitutional and Administrative law by de Smith" Sixth Edition as they appear at page 74 which may usefully be reproduced hereunder:--
"A written Constitution is regarded as the primary source of legal authority within a state. In it lies the explanation of legislature's power to make laws, the Executive's power to govern and administer, the Judiciary's power to adjudicate. But if we take one step farther, what is it that confers this legitimating quality on the Constitution? This question produces some convoluted answers. Take the Constitution of the Common Wealth of Australia. Here the answer seems fairly simple. The Constitution is valid because it was duly enacted by the United Kingdom Parliament, which had power to enact it. Subsequent amendments to the Constitution are valid because they have been made in the manner and form prescribed by the Constitution. In other words, legal continuity has been preserved.
The case of Australia, however, is exceptional in the modern world. In the large majority of independent states there has been, at one time or another, a bteach of legal continuity, and a Constitution has been adopted or changed in a manner unauthorised by the pre-existing legal order. This is already true of a high proportion of the African states which have become independent during the last fifteen years or so. Since independence they have had revolutions and coups d'etate; often the constitutional instrument has itself been abrogated and replaced, or suspended and modified, in a manner precluded by the independence constitution. And a few countries have deliberately chosen to adopt a new constitution peacefully but in a manner unauthorised by the pre-existing constitution. This is an assertion of legal nationalism, of what is called constitutional autochthony designed to demonstrate that the authority of the constitution is rooted in native soil, not derived from an imperial predecessor."
[The underlining' in the above quoted para is by me.]
51. It was strenuously argued by Raja Muhammad Anwar Advocate that if the petitioner is able to show that only one of the grounds of the impugned order is not sustainable the order as a whole should fall. He mainly rested his above contention on the view expressed by the learned Chief Justice in case "KJiawaja Muhammad Sharif v. The Federation of Pakistan and others" reported as PLD 1988 Lahore 725. It would be apporopriate to reproduce the said portion of the judgment of the learned Chief Justice as it appears at page760:--
"The established law is that even if one ground is wide, vague, general, non-specific or non-existent the whole order has to fall. There is no need to cite any authority for this proposition. It is so axiomatic that it requires no explanation. If a person takes into account, say three factors for coming to a decision and one is faulty or non-existent there is no way of knowing that how much part the faulty or non-existent fact had played in the formation of the judgment or opinion. Therefore, the whole order has to go."
The learned counsel had further submitted that
since all the findings of the cited judgment of Lahore High Court had been approved
by the Supreme Court of Pakistan in Haji Saif Ullah Khan's case (PLD 1989 S.C. 166=PLJ
1989 SC 170), the above findings
of the learned Chief Justice have also been approved and thus the principle is well trenched in a case of the nature under
discussion.
The learned counsel also cited "Keshav Talpade v. Emperor" reported as AIR (30) 1943 Fedral Court 1, "Government of West Pakistan v. Haider Biix Jatoi and another" reported as PLD 1969 S.C. 210, "Chan Pir Shah v. Congothene Chemical Industries Ltd. etc" reported as 1981 PLC 981, "Sardar Slier Muhammad v. Rao BashirAli Kfian and another" reported as PLD 1962 (W.P) Lahore 172 and "Muhammad Mosawwar Khan v. Deputy Commissioner, Gujranwala and 2 others" reported as PLD 1983 Lahore 102 in support of his above contention.
54.1 would, therefore, examine the cited case to see whether these can apply to the cases in hand in the manner it is being canvassed by the learned counsel. The first of these cases viz. Keshav Talpade arose out of the detention of the appellant therein, under the Defence of India Rules. This in fact is the case where the principle being canvassed was for the first time enunciated in the Sub-Continent. To my mind, it appears that the principle even in that case was not conclusively laid and was only brought out in the peculiar circumstances of that case as it was found that the order of detention made by the Government of Bombay read like a mere mechanical recital of the language of Rule 26 and the Court was not briefed with the evidence which persuaded the Government of Bombay to pass an order to prevent the appellant from acting in the manner alleged against him. The Court felt uneasy about the manner of passing of the order and observed:
"we confess that an order in the terms of that under which the appellant in the present case has been detained fills us with uneasiness."
55. In the above judgment at page 8 (column 2) while adverting to the observations of one of the learned Judges in the court below (Bombay High Court) to the effect:
But if the two or even one of the two grounds are justified as coming within the competence of the Indian Legislature, I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well founded." the Federal Court of India observed as under:—
"We doubt whether this is a correct statement of law."
Thus it is obvious
from the above that the Federal Court did not record any conclusive finding
on the subject but only expressed doubt as to the correctness of the statement of law
made by the Bombay High Court. The judgment of the Federal Court was, however,
followed by various superior Courts in the Sub-Continent, unfortunately without
noticing this aspect of the matter.
In the context of the above position of
the cited judgment of the Federal Court of
India, it can be safely deduced with certainty that the principle in any case was not intended to be all pervasive as to
cover cases of all natures.
The next case relied
upon is that of Haider Bux Jatoi and another (PLD 1969 S.C. 210). This
matter again relates to an order of extension of the period of detention of Haider
Bux Jatoi under Section 3 (5-d) of the West Pakistan Maintenance of Public
Order Ordinance, 1960. Although the principle laid in Kashav Talpade's case
was relied upon in this judgment, yet the principle to the contrary laid by the
then Chief Justice Muhammad Munir in "Rafiq Ahmad SheikJi v. Tlie
Crown" reported as PLD 1951 Lahore 17 was not differed with.
The most important
factor which prevailed with the Court in Haider Bux Jatoi's case to rely
upon the principle in Keshav Talpade's case was that the primary ground on which the board acted
that the respondent was a propagandist of
Akhand Bharat ad undoing of Pakistan could not be established as correct.
The case of "Chan
Pir Shah \.Congothene Chemical Industries Ltd. etc." reported as 1981 PLC
981 is distinguishable in that in this case two major grounds out of the three taken to constitute
misconduct were found to be baseless.
Taking up the next
case i.e. Sardar Sher Muhammad's case (PLD 1962 Lahore 172), I
suffice by observing that this case is circumscribed by its own facts and does
not lay down a general principle of law of universal application.
62. The only other case relied upon in this behalf was "Muhammad Mosawwar KJian v. Deputy Commissioner" (PLD 1983 Lahore 102). Again while holding in the given circumstances of that case that the doctrine of severability cannot be applied for separating bad reasons from good reasons reliance has been placed on Haider Bux Jatoi's case, which was a case, as already pointed out above, of detention under the Maintenance of Public Order Ordinance, 1960.
Considering all that
has been laid in the Judgments discussed above, and with the profoundcst
respect to the observations of the learned Chief Justice in Khawaja Muhammad
ShariPs case. I am unable to subscribe to the view in the manner it is being
canvassed by the learned Cv;ui;ie! to apply to cases of all natures and in all
circumstances, the principle that if one of the grounds is proved to be non-existent the
entire order shall fall. The observations, to me, appear to be based on the facts of
the cited case in which it was specifically held that none of the grounds as taken
by the then President for forming his opinion to dissolve the Assembly existed or
for that matter had any nexus with the preconditions laid
down by Article 58(2)(fo) of
the Constitution. It may also be pertinently pointed out in this regard that the other Hon'blc Judges of the Bench which
decided the case of Khawaja Muhammad Sharif have given findings which do not
coincide with the observations of the
learned Chief Justice and, therefore, the principle cannot be said to be one laid by the Court.
From the above
discussion it clearly emerges that the principle that if one ground of an order is
bad the order as a whole should be struck down is peculiar to the matters of detention which of
necessity have to be dealt with on a different plane in view of the law governing the matters of detention which arc
relatable to fundamental rights
involving the liberty of
citizens so cherished
under all constitutional laws. It is also to be noted that
the Detention Laws themselves require
that the grounds on which the detention is based should not only be particularized in the order itself but should also
be supplied to the petitioner. There is
no such requirement, however,
under Article 58(2)(b)
of the
Constitution. The universal application of this principle to maters of
nature other than detention without
reservations can lead to serious results and may tend to create confusion, uncertainty and chaos. This
principle, in my view, has, therefore, to
be applied very cautiously and in a restricted sphere where the law governing the
subject may warrant so. The application of this principle may vary from case to case and would only be aptly attracted where it
is shown that the grounds forming the
basis of an order are so intertwined and inseverable that each one of them cannot be taken as an independent ground but
where the grounds are everable and can
independently of each other be made the basis for the impugned action there would be no warrant for
striking down the order as a whole.
At the cost of repetition it may be observed that the quoted observations of the learned Chief Justice in Khawaja Muhammad
Sharif s case had been made in the attendent circumstances of that case in
which it was held that all the grounds given by the then President for
dissolving the then Assembly were either nonexistent or wide or vague. The
question as to whether an order as a whole should be struck down or not if one
of the grounds is found to be non-existent or vague was not in issue in that case and the observations would, therefore, be obiter
only.
65. As regards the contention of the learned counsel that these observations have been approved by the Supreme Court, I do not find any merit in it as well. A perusal of the judgment of the Supreme Court would show that this question was neither raised nor canvassed before the Supreme Court of Pakistan and being not in issue was also neither decided by that August Court nor even touched upon.
66. The view that I have taken as above finds ample support from the statement of law appearing in Halsbury's Laws of England Fourth Edition Volume I, para 26 at page 29, which may usefully be reproduced as under:—
"26. Severance of partly invalid instruments of actions. An order or other instrument or an action may be partly valid and partly invalid. Unless the invalid part is inextricably interconnected with the valid, a court is entitled to set aside or disregard the invalid part, leaving the rest intact. The principles by which the courts ought to be guided have not been clearly expounded, and they may well vary according to the context. It may be appropriate to sever what is invalid if the character of what remains is unaffected."
67. Similar comments have been made in "Administrative Law" by H.W.R. Wade, Sixth Edition at page 338 under the heading "PARTIAL INVALIDITY" which are reproduced as under:—
"Severance of good from bad
An administrative act may be partially good and partially bad. It often happens that a tribunal or authority makes a proper order but adds some direction or condition which is beyond its powers. If the bad can be cleanly severed from the good, the court will quash the bad part only and leave the good standing. One example was where a licensing authority allowed an applicant's appeal but wrongly ordered him to pay costs, which it had no power to do; the court quashed only the order as to costs. Another was where a disciplinary board validly acquitted a public servant on some charges but invalidly convicted him on others. The same principle applies to orders of courts of law, as where an unauthorised order for disqualification or forfeiture is added to a valid conviction. It also seems possible that a single order may be good against some persons and bad against others."
The comments continue ate page 339 as under:-
"But there is no 'blue pencil rule' requiring the bad part of the order to be identifiable in the order itself. Thus a local authority's order which appropriated land for planning purposes, but which included a small plot which was outside its powers, was held to be severable and valid as regards the remainder, even though it treated all the land as a single area."
68. Again in names Water Authority v. Elmbridge Borough Council (1983) 1Q.B. 570, Stephenson L.J. observed as under at page 585:-
C. "By applying that principle they have been able, not only to make sense of near nonsense but also to give effect to what is good and enforce what is valid, while refusing to enforce what is bad and giving no effect to what is invalid. This latter exercise can be carried out, and can, of course, be carried out only, where the good and bad parts are clearly identifiable and the bad part can be separated from the good and rejected without affecting the validity of the remaining part. But this ought to be done whenever the good and bad parts can be so identified and separated and what remains is clearly valid in the sense that there is nothing inherently unenforceable about it and all the surrounding circumstances indicate that common sense and the intention of the maker of any document which includes both good and bad parts would give effect to it."
G. "But where what is alleged to be invalid and unenforceable can be isolated and identified with precision, the court should not refuse to enforce the rest, as Ackner L.J. pointed out in United City Merchants (Investments) Ltd. v. Royal Bank of Canada in the passage, at p. 242, which Dunn L.J. has read."
69. In the same report, Dunn L.J. at pages 580-581 very aptly brought out the principle of scverability in the following words:—
"Much of the difficulty in the case seems to me to have been caused by the very use of the word "severance" which, in relation to the construction of documents and in particular of covenants in restraint of trade, has acquired a special and technical meaning. Us use in this case demonstrates the danger of using such words in their general or ordinary meaning to describe a process in which the court is in fact considering the validity of the purported exercise of power by a local authority. The label given to the process tends to confuse the reality of the process itself by imposing rules of law designed to deal with quite different situation. I would echo the words of Ormrod L.J. in Dunkley v. Evans (1981) 1 W.L.R. 1522, 1524,1525, that the court should not strive officiously to kill to any extent greater than it is compelled to do. If, as here, it is perfectly plain that the urban district council had no power to do what is purported to do in respect of an easily identifiable parcel of land, it would not be conducive to good public administration for the court officiously to hold that the whole document, including that part which was within the power of the council, was invalid."
70. A view akin to the conclusions reached in the two judgments cited above has also been taken in Royal Bank of Canada v. I.R.C. reported as (1972) 1 All E.R. 225. The relevant observations apearing at page 239 read as under:-
"But where, as here, the requirements are contained in the notice divided into numbered paragraphs dealing with different matters, and the attack is made on one or more of such paragraphs, I do not see why the invalidity of those paragraphs, if established, should infect the other paragraphs, or why the notice should not be good as to the good paragraphs and bad as to the bad. Accordingly, had it been necessary to decide the point, I should have held that even if questions 3 and 4 in the notice were invalid, this would not invalidate questions 1 and 2."
71. It is of great interest that Muhammad Munir, C.J.
as he then was, in case "Rafique
Ahmad Sheikh v. Crown" reported
as PLD 1951
72. Cornelius, C.J., as he then was, speaking for the Court in "Ttie Commissioner, Sargodha Division, and the Deputy Commissioner, Sargodha" v. Kiiizar Havat and 5 others" reported as PLD 1966 S.C. 793 observed as under at page 801:-'
"In my opinion, the learned Judge of the minority was right in the view he took, namely, that the Commissioner's order should be held to be good as far as it was within the law, and as for the fact that thereby, from the first trial, there would be excluded a number of aspects of the case which were graver than those constituting the offence referred, if Consequence in law were to follow, those could be left to take care of themselves. If in the result certain of the more serious aspects of the crime were to go unpunished, the responsibility would lie upon the Legislature, whose dictate was being obeyed by the Courts, as in duty bound."
73. In yet another famous case "Brig. (Retd.) F.B. All and another \. Tlie State" reported as PLD 1975 SC 506, the principle of severability was brought out by Hamood-ur-Rehman, C.J. as he then was, at page 539 in the following words:—
"In the present case, as I have already indicated earlier in this judgment, I am not in a position to say that the evidence relating to the charge of conspiracy was wholly irrelevant or inadmissible, because, the seduction or the attempt to seduce was itself an overt act of the conspiracy, and therefore, no serious prejudice had been caused, in my view, by the joint trial of the two offences and I am, therefore, unable to accept the contention that the whole trial is vitiated. In my view, only the conviction in respect of the offence under section 121-A, P.P.C. is vitiated on the ground of want of Jurisdiction and not the conviction on the charge of attempt to seduce, because, that was within the jurisdiction of the Court Martial to try and there was relevant evidence on which the decision of the Court could be based."
74. Same view has been adotped by the Indian Supreme Court in "State of Ori.isa and others v. Bidyabhushan Mohapatra" reported as AIR 1963 S.C. 779, wherein at pages 785 and 786 it was observed that:-
"It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1 (a) and 1 (c) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges l(a) and l(c') alone the Court could have jurisdiction to declare the order of dismissal illegal but when the findings of Tribunal relating to the two out of five heads of the first charge and second charge were found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal."
75. In another judgment from the Indian jurisdiction in case "Stale of Maharashtera v. B.K. Takkamore reported as AIR 1967 S.C. 1353, it was held as
under:—
"Where an order is based on several grounds, some of which are irrelevant then if there is nothing to show that the authority would have passed the order on the basis of relevant and existing grounds that order cannot be sustained. Where, however, the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds and the exclusion of irrelevant or non-existing ground could not have affected the ultimate opinion or decision of the authority, order has to be sustained."
76. The Supreme Court of India in "Swam Singh and another v. State of Punjab and others" reported as AIR 1976 SC 232 again dealt with this proposition at page 237 (Column 1) as under:—
"There is authority for the proposition that, were the order of a domestic tribunal makes reference to the several grounds, some relevant and existent, and other irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision."
The Universal
application of the proposition as canvassed by Raja Muhammad Anwar, the
learned counsel for the petitioner can otherwise also be not given effect to on
yet another very weighty reason based on another well settled principle of
law that beore striking down an order passed by a public authority the Court
must explore every possible explanation for its validity and examine the entire
field of powers conferred on the authority by which the impugned order has
been passed and all efforts must be made to uphold it.
Authority if any
required in support of this principle can be found in two decisions of the
Supreme Court of Pakistan. In one viz. "77ie Chairman, East Pakistan Railway
Board, Chittagong; and District Traffic Superintendent, Pakistan Eastern Railway,
Pahartali, Chittagong v. Abdul Majid Sardar, Ticket Collector, Pakistan eastern
Railway, Laksam (PLD 1966 S.C. 725), at page 730 it was observed by Muhammad
Yaqub Ali J., as he then was:—
"None of the grounds on which the order in appeal is based thus holds good, but before we conclude it appears appropriate to observe that acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance of which the public authorities act or performed their function examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect."
79. The same principle was reiterated in "Lahore Improvement Trust, Lahore through its Chairman v. Tlw Custodian, Evacuee Property, West Pakistan, Lahore and 4 others reported as PLD 1971 S.C. 811.
80. Taking up the third proposition it would be seen that the word "also" has a special significance in the context of the provisions contained in clauses (1) and (2) of Article 58 of the Constitution. The President's power to dissolve the National Assembly under clause (1) is dependent upon the advice that may be rendered by the Prime Minister in this behalf. That means the power under Article 58(1) ibid is exercisable by a conjoint action of the Prime Minister and the President. The use of word also in clause (2) of Article 58 would therefore, clearly spell out that the President has an additional power to dissolve the National Assembly independent of the advice of the Prime Minister.
81. The word "discretion" and "opinion" used in clause (2) of Article 58 as placed in the provision lead to a plausible inference that the exercise of discretion has to follow the formation of an opinion. The opinion of course has to be objective whereas the discretion after the forming of a valid opinion appears to be subjective. It would make the burden of the President lighter if the grounds are given and they lead to a legitimate conclusion. The court will not interfere in the exercise of the discretion merely on the ground that another conclusion may be possible. I draw support in the formation of the above view from the judgment of the Supreme Court of Pakistan in Haji Muhammad Saif Ullah's case.
82. The expression "cannot be carried on in accordance with the Constitution" has a history behind which may usefully be recounted here.
83. In the Indo Pak sub-continent, the experssion for the first time appeared in, Article 45 contained in Chapter V and Article 93 in Chapter VI of the Government of India Act, 1935 under the heading:-
"Provisions in case of failure of Constitutional machinery"
Similar expression appears in Article 356 of the Indian Constitution which provides that
"if the President on receipt of a report from the Governor of a State or
otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be
carried on in accordance with the provisions of the Constitution, the Prsident may by proclamation
So far as the decided cases are
concerned, the only two cases from our country
are those of A7i. Mohammad Sharif and Haji Muhammad Saif Ullah Klian to which reference has already been made.
In the case of Haji
Muhammad Saif Ullah Klian, the
expression aforementioned has been examined in detail as it appears from the
discussion appearing at page 212 of the report.
From the Indian
jurisdiction also, two cases, may be referred to with advantage, the first
one being a judgment of the Indian Supreme Court in State of Rajasthan v. Union of India AIR
1977 supreme Court page 1361 wherein BEG C.J. as he then was at page 1385 of the
report observed,-
"Mr. Setalvad in his Tagore Law Lectures, 1974, on "UNION AND STATE RELATIONS" has observed, while dealing with Governor's role (at PP. 164-165): "The powers of the President under Article 356 have been frequently exercised since the commencement of the Constitution. The occasions for its exercise emphasise not only the importance of the power in maintaining stable governments in the State, but also^the vital role which the Governor has to play in enabling the Union Executive to exercise the powers vested in it under Article 356. The constitutional machinery in a State may fail to function in numerous ways. There may be political deadlock; for example, where a Ministry having resigned, the Governor finds it impossible to form an alternative government; or, where for some reason, the party having a majority in the Assembly declines to form a Ministry and the Governor's attempts to find a coalition Ministry able to command a majority have failed. The Government of a State can also be regarded as not being carried on in accordance with the Constitution in cases where a Ministry, although properly constituted, acts contrary to the provisions of the Constitution or seeks to use its powers for purposes not authorised by the Constitution and the Governor's attempts to call the Ministry to order have failed. There could also be a failure of the constitutional machinery where the Ministry fails to carry out the directives issued to it validly by the Union Executive in the exercise of its powers under the Constitution. The very statement of some of the situations, which may bring about the use of the machinery provided by Article 356 shows the pivotal position which the Governor occupies in respect of these situations and the grave responsibility of his duties in the matter of reporting to the President under Article 355 and 356 of the Constitution."
The other case is the
judgment of Kerala High Court in K.K. Aboo v. Union of India and
others (AIR 1965 Kerala) page 229 wherein it was noted, that the situation in
which a Constitutional Government becomes impossible, can arise as a result of the
party position in and the composition of the Parliament.
In the light of the
discussion in the said judgment, the expression as quoted hereinabove
can safely be construed to mean that an order under the aforementioned
provision of the Constitution can only be passed by the President if the grounds taken
by him in the order to hold that the government of the Federation cannot be
carried on in accordance with the provisions of the Constitution have a
direct nexus with the various Constitutional provisions to which the Government
of the Federation/the National Assembly were not adhering to thereby rendering it
impossible to carry on the Government in accordance with the Constitution.
The words "an
appeal to the electorate is necessary" will have to be examined in the light
of the genesis of our Constitution which envisages Pakistan lo De an
Islamic Republic where per our belief the sovereignty over the entire universe belongs to
Almighty Allah alone. It is ordained by God Almighty in Sura Al-Furqan verse 2 as
follows:--
Transalation:
He unto whom bclongeth the Sovereignty of the heavens and the earth, He hath chosen no son nor hath He any partner in Sovereignty. He hath created everything and hath meted out for it a measure."
Again in Sure A' 1-e-Imran verse 189,
the commandment is as under:—
Transalation:
"Unto Allah belongeth the Sovereignty of the heavens and the earth. Allah is Able to do all things."
Again in Sure Al-Hadid verse 2 it has
been revealed:—
Translation:
"His is the Sovereignty of the heavens and the earth; He quickeneth and He giveth death; and He is Able to do all things."
91. The above are not the only verses of Quran-e-Hakim through which sovereignty of Allah Almighty over the universe has been emphasized but the Holy Quran contains this all important factor of Oneness of God and His exclusive sovereignty in the following verses as well:—
Verse 10 Sura Al-Shura
|
Verses |
49&50 |
Sura Al-Shura |
|
Verses |
S4&85 |
Sura Al-Zukhruf |
|
Verses |
26&2V |
Sura Al-Jasia |
|
Verses |
1&2 |
Sura Al-Mulk |
|
Verse |
83 |
|
|
Verse |
114 |
|
|
Verses |
84 to 89 |
|
|
Verse |
70 |
|
|
Verse |
88 |
|
|
Verse |
46 |
|
|
Verses |
8.& |
9 |
|
Verse |
57 |
|
|
Verse |
62 |
|
|
Verse |
40 |
|
|
Verse |
67 |
|
|
Verse |
\ll |
|
|
Verse |
1 |
|
|
Verse |
107 |
|
|
Verses |
128 |
& 129 |
|
Verse |
42 |
|
|
Verse |
14 |
|
|
Verse |
17 |
|
|
Verse |
40 |
|
|
Verses |
115 |
&116 |
Sura Yasin Sura Taha Sura Al-Mu-minun Sura Al-Qasas Sura Al-Qasas Sura Al-Zumar Sura Al-Buruj Sura Al-Anam Sura Al-Anam Sura Yousaf Sura Yousaf Sura Bani Isra'il Sura Al-Taghabun Sura Al-Baqara Sura Al-e-Imran Sura Al-Noor Sura Al-Fateh Sura Al-Ma'ida Sura Al-Ma'ida Sura Al-Tauba
92. The firm belief of Pakistanis in the above Quranic verses is fully reflected in the Preamble of our Constitution which is now its substantive part in view of Article 2-A thereof and which inter alia reads as under:—
"Whereas sovereignty over the entire
Universe belongs to Almighty Allah alone, and the authority to be exercised
by the people of
Wherein the State shall exercise its power and authority through the chosen representatives of the people;"
93. The effect of the above would be that whereas the real sovereignty over Pakistan vests in Almighty Allah, it is delegated to the people of Pakistan by Him as a sacred trust so that they exercise the authority through its chosen representatives i.e. the Members of the Parliament. If the sacred trust reposed in the Members of the Assembly by the people as delegate of God Almighty is abused, misused or is not exercised in accordance with the tenets of Islam and the Constitution, the President can by dissolving the Assembly make an appeal afresh to the people to whom the power has been delegated by Allah Almighty and who in the common parlance of parliamentary language arc the political sovereigns.
94. Dicey in his classical work on Constitution "AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION TENTH EDITION"
at page 433 has also stated the law in the above context which being instructive is reproduced hereunden—
"The discretionary power of the Crown occasionally may be, and according to constitutional precedents some times ought to be used to strip an existing House of Commons of its authority. 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."
[Note: The underlining' in the above para is by me.]
95. Looking at the matter in the above perspective it
becomes clear that having framed a
written Constitution, the people of Pakistan would like to be governed in accordance with the Constitution. This
mandate of the political sovereign if
it is betrayed by a Government by not functioning in accordance with the
Constitution, then the President who is vested with the power to dissolve the Assembly in such a situation by exercise of power
under Article 58 (2)(fc) of the Constitution
is under a constitutional obligation to make an appeal to the electorate to elect a new Assembly so as to ensure
that the mandate of the Constitution
continues unabated without any let or hindrance from any quarter. The true import of the words "an appeal to
the electorate" in the light of the above discussion would be that the power of the President in the event of his
dissolving
the Assembly is circumscribed so as
to make it obligatory upon him to make an appeal to the electorate and he is
not left free to adopt any other measure when he in his discretion on forming
an opinion that the Government cannot be run in accordance with the Constitution dissolves the Assembly.
96. The
last of the
above formulated propositions which
falls for determination is whether the newspaper
clippings/reports cannot be read in the present proceedings for
determinging the soundness/validity of the opinion formed by the President. The learned counsel for
the petitioners in this regard relied
upon "Raja Muhammad Afzal v. Allaf Hussain" reported as
1986 SCMR 1736. Contrarily, the learned Attorney General relied upon "Islamic
Republic of Pakistan v. Abdul Wall KJian MNA" reported as
PLD 1976 S.C. 57 as also on "Ghulam
Sarwar Awan v. Government of
Sind" reported as PLD 1988 Karachi 414 and "Federation of Pakistan and others v. Haji Muhammad
Saif Ullah Klian and
others" reported as PLD 1989 S.C. 166=PLJ 1989 SC 170. A
perusal of the judgment cited by the
learned counsel for the petitioners shows that it proceeds on wholly different circumstances peculiar to that
case. That was a case which arose out
of an election petition. The election petitions per law and rules governing the subject have to be tried as a suit
and the provisions of CPC as also of the Evidence Act have also to be
applied to those proceedings. It may also be observed
that in such cases the parties lead both oral and documentary evidence and, therefore, evidence has to be sifted as
admissible or inadmissible. In cases of constitutional nature coming up before
the superior courts per rules governing the proceedings of such petitions the
matters have to be decided on affidavits of the parties as also on such material which in the attendant circumstances
of the case can be referred to or
relied upon. Raja Muhammad Afzal's case is, therefore, not applicable to the facts and circumstances of the
case in hand. The case more akin to
the present case is Abdul Wali Khan's case in which the question under
consideration was as to whether the order of dissolution of political party or imposing a ban on its functioning was justified
or not. In that case it was observed that
newspaper reports of contemporaneous events if not rebutted within a reasonable period would be considered by the
court as sufficient or valid basis for forming an opinion or adjudication of
the matter by the court itself. In the case in hand the newspapers clippings/reports relied upon by the Federation are undenied reports of events of the period during
which the Pakistan Peoples Party Government was in power in the
Federation and the said reports/newspapers clippings have not in any manner by
production of a counter report or a denial been
rebutted by the petitioner. Reference to the newspapers clippings/reports etc. in view of the above discussion can,
therefore, be not refused and the material available therefrom can be referred
to for the purpose of examining the soundness and validity of the grounds taken
in the order of the President. It may further be observed that the newspapers clippings/reports were only a
corroborative factor and not the root basis for the purposes of arriving
at the opinion even by the President.
At this juncture it
will also be desirable to deal with the objection raised by the petitioner's counsel as to
the admissibility for
consideration of the documents marked as
anncxures A, A/1, A/2, A/3, and M-l to the written statement. The
objection was that these being secret documents cannot be looked upon for the purpose
of determining the issue to which these relate. This objection would be of
no consequence in view of the statement made by the learned Attorney General that the
documents had been declassified as secret and no
longer any secrecy is attached to them.
Yet another aspect of
the matter which is germane to the issue under discussion is whether the documents
have to be proved before us as if a trial is being held by this Court. The answer
to this question is obviously in the negative in that this Court in the present
proceedings is only determining whether the material before the President for passing the
order on 6th of August, 1990 was sufficient to reach the conclusion which he
had arrived at. The objection in the circumstances herein above mentioned appears
to be not well based and is accordingly repelled.
The common legal
propositions emerging out of the controversy in these petitions excepting
the constitutionality of the Eighth Amendment having been dealt with, the only
matter left to be determined is the validity of the grounds taken by the
President in the impugned order for dissolving the Assembly.
100. It may be observed in this regard that it is not possible to precisely enumerate the situations in which the power conferred by Article 58(2)(b) of the Constitution can be validly exercised. The failure of constitutional machinery may result from internal subversion or dissension; the deadlock arising from indecisive electoral verdict and political polarisation which makes the carrying on of the Government impossible or where the Government is being conducted in disregard of the Constitution and the law.The President having chosen to state the grounds for the action taken by him, I now proceed to examine the same to find out as to whether there is any nexus between the grounds and the preconditions envisaged by Article 58(2)(ft) of the Constitution empowering the President to dissolve the National Assembly in his discretion.
The main purpose of the Parliament of
which National Assembly is an important
component is to undertake the legislative work as envisaged by Article 70 of the Constitution. There was material before
the President which has also been placed before us to show that the National
Assembly not only did not but was
also not in a position to carry out any substantial legislative work
effectively. Article 70 of the
Constitution ordains that a Bill passed by one House of the Parliament shall be presented to the other House
of the Parliament and which when
passed by the other House is presented to the President for his assent. If the Bill is not passed by the other House within 90
days of the receipt, or is passed with amendment, the Bill at the
request of the House in which it originated shall be considered in a joint session of the Parliament. It is undeniable
that the then
Government had virtually no representation in the Senate except that it
had only two members in the said House. In
the National Assembly as well the Peoples Party did not have a
comfortable majority. With the hostile attitude taken by the Federal Government against the Senate and having
political confrontation all around i.e.
with two of the federating units, it had become practically impossible, which position was likely to continue also, for
the Government to carry out any legislative
work successfully as there was no likelihood of any Bill sponsored by the Government being passed in the joint session
of the Parliament for lack of majority.
There was thus a
complete deadlock and impasse which is reflected from the fact that during the twenty
months' tenure of the Federal Government, out of the 50 Ordinances/Bills
presented before the National Assembly only 15 could be passed by the
Parliament while the remaining were not processed and allowed to elapse.
The learned counsel
for the petitioner as well as Haji Muhammad Saif Ullah Khan, one of the applicants had
argued that the passing of the Finance Bills shows that the Government was in a
position to carry out the legislative work. This contention is not well founded for the
reason that it fails to notice the constitutional position in
this regard as contained in
Article 73(1) of the Constitution which
provides that a money bill shall originate in the National Assembly and after it
has been passed by the Assembly it shall without being sent to the Senate be presented to the
President for his assent.
The discussion in the foregoing paragraphs
does, therefore, show that I there was breakdown of the legislative machinery
resulting in a deadlock which I has
a direct nexus with Article 58(2)(ft) of the Constitution and the President
was] justified in making this ground
a basis for dissolving the Assembly.
106. The activity of horse trading, which had become a common talk in the country as well as abroad in relation to the conduct of some of the Members of the National Assembly, is yet another basis taken by the President for forming his opinion to dissolve the Assembly. The matter assumed such scandalous proportions that the President had to dwell upon it in details while addressing the joint session of the Parliament on 2nd of December, 1989. For the sake of brevity, I would avoid extensive reproduction of the speech of the President and would suffice by referring to a portion thereof which reflects his anxiety to see that the Government of the Federation was run in accordance with the provisions of the Constitution. In his speech, he categorically stated:-- horse trading jjl political stock exchange
He fervently appealed to the Members to act according to their conscience and represent the electorate according to the point of view under which they had voted the members to the Assembly. He also pointed out that after election if a Member has a change of views then instead of going against the mandate of the electorate as given to him before his election and thereby committing a sin and being bound in morality and religion return the trust reposed in him to the electorate concerned by resigning and thereafter seek consensus to his changed views through a fresh election.
The example of the
"horse trading" without going into details is clearly demonstrated by the
fact that some of the opposition Members of the Assembly who were instrumental
in the defeat of the no confidence motion against the Prime Minister were
immediately thereafter appointed Ministers/Ministers of State. It is worthy
of mention at this stage that some of these persons were signatories to the
no confidence motion. In the context of the foregoing, the curse of "Horse Trading" was a valid
ground for dissolution of the National Assembly inasmuch as degeneration of the
character of the members of the elected Houses is bound to adversely affect the Constitutional mechanism and
consequently lead
to break down of the Government.
Before parting with this aspect of the
case it appears just and proper to take
notice of the submission made by Mr. Ismail Qureshi, Advocate, who contended that the Federal Government in not
giving effect to the judgment of the Supreme Court by legislating on the
subject to Qisas and Diyat had failed to carry on the Government in accordance with the provisions of the Constitution.
The submission appears to have relevance
when seen in the context of the position that the Federal Government not only did not present a legislation to give
effect to the judgment of the Supreme
Court but also showed its resistance by dubbing the punishment under the Islamic Laws as impracticable
and cruel in the present day world.
The law and order situation in the Province of Sindh is not unknown. The internal disturbances in Sindh had assumed serious proportions. The massacre of innocent citizens, the large scale kidnappings including those of children for ransom, the dacoities, robberies, arson, looting etc. had become so rempant that it shocked every law abiding citizen, the people living in Sindh were under a constant fear of damage to thier lives and properties. Insecurity in their minds had brought about a situation that practically the life had become standstill. The economic activities in that part of the country also became negligible. The highly industrialized city of Karachi had been reduced to a place without any life and loss of production was colossal. This situation of necessity leads to the imbalances in the trade of the country both locally as well as in the foreign sphere.
110. The hereunder given statistics available with the President before passing the impugned order and which have also been placed on the record of this case by the Federation show the figures of crimes committed in the Province of Sindh during the period of Peoples Parly Government:-
Statement of Crimes 01 January to 31 July, 1990
EVENTS SIND PUN NWFP BALU TOTAL
JAB CHISTAN
|
MURDER |
72 |
56 |
23 |
12 |
163 |
|
RAPE |
2 |
1 |
-- |
-- |
3 |
|
DACOITY CASES |
1062 |
244 |
55 |
28 |
1389 |
|
KIDNAP (NUMBERS) |
768 |
22 |
84 |
14 |
888 |
|
ETHNIC TROUBLES |
|
|
|
|
|
|
(a) KILLED |
635 |
1 |
-- |
-- |
636 |
|
(b) WOUNDED |
1434 |
22 |
-- |
-- |
1456 |
|
LABOUR RIOTS |
|
|
|
|
|
|
(0) KILLED |
6 |
1 |
-- |
-- |
7 |
|
0) WOUNDED |
62 |
18 |
1 |
-- |
81 |
|
STUDENT RIOTS |
|
|
|
|
|
|
(a) KILLED |
11 |
5 |
-- |
-- |
16 |
|
(b) WOUNDED |
125 |
103 |
38 |
7 |
273 |
|
OTHER INCIDENTS |
|
|
|
|
|
|
(a) KILLED |
464 |
250 |
182 |
70 |
966 |
|
(b) WOUNDED |
871 |
896 |
433 |
146 |
2346 |
|
STATEMENT OF |
MURDERED/KILLED |
AND WOUNDED |
|||
PROVINCE MURDERED/KILLED WOUNDED
SIND 1188 2492
PUNJAB 312 1039
NWFP 205 472
BALUCHISTAN 82 153
TOTAL 1787 4156
The same when seen in comparison with the figures of similar crimes in other Provinces including that of Punjab, which has a population almost three times that of Sindh, the astronomical height of crime in Sindh can be well visualized. In addition to the above position, Karachi and many other cities in the Province of Sindh remained under curfew for days and months together.
In order to avoid burdening this judgment unnecessarily with the details of crimes and criminal activities in
Sindh I would only observe that it was an internal subversion and disturbance of that high order
which had gone beyond the control
of the Provincial Government and called for an action by the Federal Government in terms of Article 148(3)
of the Constitution, in order to protect that Province against internal
disturbances, which continued un-abated.
It may pertinently be observed here that after Hyderabad incident which took a heavy toll of valuable lives of
citizens including women and children, the President felt, so much anguished
that he wrote to the Prime Minister twice over to take corrective measures but it did not produce the
desired result. Not only that even the Governor of the
Province of Sindh an
appointee of the Federal
Government itself in his
letter dated 27th of May, 1990 in regard to the situation in Sindh, expressed his view in the
following word's:--"I
have already pointed out that unless we so for recovery of illegal arms in a big way, the law and order
situation will not improve in Sindh and the recent events in Hyderabad have convinced me that the
recovery of the arms will
be possible with the aid of the Armed Forces in terms contemplated by Article 245 of the
Constitution and that too in cooperation with local leaders."
113. Viewed from the angle that even the then Attorney
General of Pakistan, a member of the
Cabinet of the Federation, in his opinion dated 9.6.1990 given on the subject of invocation of Article 245 of the
Constitution by the Federal Government
in respect of the Province of Sindh staled that Article 245 of the Constitution
in his opinion is necessarily required to be invoked, the inaction of the Federal Government becomes significant. Could
there be a more serious situation like
this where the Federal Government fails to act in accordance with the
Constitution when the President, the Governor and the principal Law Officer of the Government are all of the view that in order
to save the valuable life and property of the citizens, a provision of the
Constitution should be invoked and yet the
Government fails to act.
114. At this stage it seems
desirable to deal with the submission of the learned counsel for the petitioners that law and order
situation in the province of Sindh was not a valid basis for dissolving the
Assembly as it has been held to be a provincial subject in the case of Haji
Muhammad Saif Ullah KJian. The argument to me appears to be naive. The law and order situation in the
Province of Sindh was not of ordinary nature
so as to be shoved on as a responsibility of the Provincial Government alone. There is no doubt that maintenance of law
and order is a responsibility of the
Provincial Government but where the internal disturbances assume proportions beyond the Control of the provincial Government it becomes the duty of the Federal
Government under Article 148(3) of
the Constitution to protect the provinces against internal disturbances and to ensure that the Government of every province is
carried on in accordance with the provisions
of the Constitution. In the total perspective of the situation in the Province
of Sindh, the internal disturbances had become a real threat and danger to the
integrity and solidarity of Pakistan which, as already observed, had been duly taken notice of by the President and the
Governor of the province. The said situation in the Province of Sindh also
tended to defeat the constitutional objective of peaceful Government.
The above factors,
therefore, establish that the Government of the Federation could not be run in
accordance with the Constitution and on this score also Article 58(2)(b) of the
Constitution is fully attracted to justify the dissolution of the National
Assembly and dismissal of the Federal Government.
The Constitution in
its essence envisages Pakistan as an Islamic Federal Republic wherein the
Federal Government and federating units have well defined powers and spheres of
operations. A mechanism is inbuilt in the Constitution to resolve disputes
between the Federation and its units and between the units interse Failure on the part of
the Federation in the formation of and/or any obstacle in the free working of
all the institutions constitutionally envisaged for resolving disputes between the
units and the Federation are likely to endanger the Federal structure of the
state itself. In this regard one of the important institutions contemplated by the
constitution is the Council of the Common Interests provided for by Article 153
of the Constitution. Article 154 of the Constitution enumerates the functions and rules of procedure of
the working of the council. This Council
inter alia formulates and regulates policy in relation to
matters in Part II of the Federal
Legislative List and entry 34 (Electricity) in the Concurrent List. It also supervises
and controls the related institutions and is also required to determine the rates at which profits are to be calculated in
terms of Article 161 of the Constitution.
The documents on record which were also before the President do reveal that the Federal Government despite
repeated demands by three out of the four
federating units and unanimous resolution of the Senate failed to call a meeting of the Council of Common Interests which
resulted in polarization and confrontation
between the Federation and the two federating units to an extent
which eventually obliged them to file
a suit against the Federation in the Supreme Court of Pakistan under Article
184 of the Constitution. The President's anxiety to ensure that the Government of the Federation is run
in accordance with the Constitution
can be well spelt out from his address to the Joint Session of the Parliament, his letter to the former Prime
Minister dated 18th June, 1989 wherein he emphasised the importance of
the Council of Common Interests and the need for
convening of a meeting of the said Council before the ensuing budget so that it
rehabilitates confidence between the
Provinces and the Federation. The President through his letters dated 12th July, 1989 and 31st July, 1989 addressed
to the former Prime Minister again
reiterated the importance of the Council and the calling of its meeting in order to
remove misgivings inter-alia about the Peoples Programme launched in the Provinces by
the Federal Government. The President also made a public speech on 19th
February, 1990 at Quetta which is reported in the Daily Nation of Lahore of the same date wherein he
rcemphasised that in order
to resolve Centre Provinces differences and remove resultant misgivings and
tension, it was necessary to let institutions provided for by the Constitution
in this behalf function.
All these beseechings and entreaties appear to have gone unheeded as the Federal Government did
not convene any meeting of the Council nor it had any intention of giving it any importance or
adopting a course of reconciliation
in future as well, as is apparent from the written statement filed by the Federation in the Supreme Court of
Pakistan in the suit instituted by the two federating units.
117. The stand taken by the then Attorney General before the Supreme Court of Pakistan as read out by the learned Attorney General before us from a report of the Press was as follows:--
"He said the Prime Minister being the Chairman of the CCI, has no objection to summon the CCI. But, he added, there is no such dispute between the Federation and the Provinces, which required immediate meeting of the Council."
Such a statement
in the wake of clamour by the two Provincial Governments through the press and otherwise
for calling of a meeting of the Council of the Common Interests can only be termed as" ^ t^/ (j.
/ j' IJ "•
With the above background of inaction
in calling a meeting of the Council of Common Interests, the submission of the learned Attorney
General that the same was
not being convened purposely by the Federal Government as in case of any Government feeling
dissatisfied with a decision of the Council of Common Interests,
the matter had to be referred for determination to the Parliament in a joint sitting in which
the Federal Government not having majority had imminent danger of being defeated, appears to have
substance.
Another important constitutional
institution to keep unity between the Federation and the
Federating Units is
the National Finance
Commission required
to be set up under Article 160 of the Constitution. This Commission has the all
important function of distribution of revenues between the Federation and the Provinces. The formation of this
Commission was continuously delayed and it
was only formed on 25lh
of July, 1990, i.e. a day before the last date for its formation under the Constitution. This
delay in the formation of the National Finance Commission by the Federal Government to say the
least, was deliberate as
not a single meeting of the Commission could be convened throughout twenty months tenure of the Federal
Government and thus the Federating Units were deprived of constitutional remedy for the redress of their
grievances qua the distribution
of revenues.
On this aspect of the matter, the
learned counsel for the petitioners had also submitted that the dispute regarding the convening of
the meeting of the Council
of Common Interests being subjiidice before the Supreme Court of Pakistan, taking into account of this
ground for the purposes of dissolving the Assembly amounts to contempt of court.
The point as convassed by the learned
counsel for the petitioners does not appear
to have force. The President while making the ground in question as a basis of his order did not comment upon the merits
of the dispute as pending in the
Supreme Court of Pakistan. Mr. S.M. Zafar appears to have correctly submitted that the President only took notice of
the acrimony between the Federation
and the Provinces on the above subject and considered it a matter relatable to the grounds envisaged by Article
58(2)(fc) of the Constitution for passing an order thereunder.
The Federal character
of a State can only be maintained when the Federation and its Units respect the
autonomy of each other and are desirous with all sincerity not to encroach upon and enter into the
spheres of each other. In our Constitution
there are well defined spheres of the Federal as well as the Provincial authority. Appended with the Constitution are
Schedules giving the Federal Legislative
List and the Concurrent Legislative List. All items which are not to be AT found in any of the above two lists fall within
the sphere of Provincial Legislative List.
The two provinces viz. the Provinces of Baluchistan and
Government brought about situations
of highly explosive nature which could have resulted in a sort of a civil war.
The extent of
executive authority of the Federation is provided for by Article 97 of the
Constitution which reads as under:-
"97. Extent of executive authority of Federation.-Subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan:
Provided that the said authority shall not, save as expressly provided in the Constitution or in any law made by Majlis-e-Shoora (Parliament), extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws."
125. The proviso to this Article as reproduced above in
unequivocal terms and in a mandatory
form prohibits the extension of the Federal executive authority in any Province to a matter with respect
to which the Provincial Assembly has
also power to make laws. The said authority can only be extended to the Provinces as provided for by the Constitution
by a law made by the Parliament in
this regard. The launching of the Peoples Programme in the Provinces is neither envisaged by any provision of the
Constitution nor any law is shown to have been made by the Parliament for this
purpose. A question was specifically At' posed to the learned counsel for the petitioner to show under what
constitutional provision or for that
matter under what law that may have been made by the Parliament, this Programme was launched in the
Provinces. He very candidly
conceded that no law as such was made
by the Parliament for the launching of this Programme and that it was
carried on in the Provinces only through an executive order. Such an action on the part of the Federal Government to have
encroached upon the sphere of provincial autonomy
in the terms of the admission before us is a clear and flagrant violation of Article 97 ibid.
Apart altogether from the above
position that the Peoples Programme was launched without any constitutional or legislative backing, the
manner of its launching
through personnel who were workers of a political party constituted inter alia of such of them who had been defeated
in the last general elections to the National and Provincial Assemblies is also highly objectionable
especially when the
persons administering the Programme were under no legal obligation to be answerable for the spending of the
funds, against which spending there have been open allegations of misappropriation, embezzlement
and in any case of squandering
away of the funds for purposes other than for which these were intended. Needless to mention that
under no law or even for that matter under any colour of law can the public funds be placed at the
disposal of private persons who are not even declared as public servants under the relevant laws.
These
violations of the
constitutional requirements cannot be, but termed as valid ground on which action could be taken
by the President as provided for by Article 58(2)(&)
of the Constitution.
Article 14 of the Constitution
guarantees that the dignity of a man and, subject to law, the privacy of home shall be inviolable.
This fundamental right was flagrantly
violated and disregarded by taping the telephones of highly respectable persons
including dignitaries like Chairman of the Senate and Speaker of National Assembly. Even the members of the
Government party including the petitioner,
who was the Minister for
Parliamentary Affairs, were not spared. This act was not only in derogation of the fundamental
right but was also violative of what had been ordained by Allah Abniehtv in Sura Al Huiural
\'cr>e 12:
Translation:
"O ye believe! Avoid suspicions as much (as possible): for suspicion in some cases is a sin: And spy not on each other."
128. The right to privacy of citi/.en is not only guaranteed by the Constitution but has its foundations in Quranic Injunctions and Islamic traditions It is of interest to note that this principle was acknowledged and propagated by the then Attorney General of Pakistan, Mr. yahya Bakhitar, in his article appearing in the Journal Section of PLJ 1990 (May part) (Page 1 18).
129. In support of this contention, the learned Attorney General produced before us some cassettes of taping of the telephones of various persons. He also informed the Court during the proceedings that the names of the persons whose telephones were taped as given in an Annexure to the written statement are not the only persons but a large number of other telephones were also taped. It -was pointed out by him that a colossal amount was spent by the Federal Government for importing mechanism and devices for taping. The irony is that when this question was raised in the Assembly by some of the Members of the defunct Assembly, there was a categorical denial by the Government of taping of the telephones. Nothing has been urged on behalf of the petitioner to controvert this assertion and no lawful authority is shown to be existing in favour of -any person to order the taping of telephones,
The constitutional
organs of the State like the Senate and superior judicialy were publicly
ridiculed and brought into disrespect. As regards the Senate the Federation
through the Deputy Attorney General/Attorney General took up the plea that the
said House is an invalid body and has no recognition under the Constitution. This statement was
made by the Deputy Attorney General
before the Sind High Court in the case of
Abdul Mujeeb Pirzada v. Federation of Islamic
Republic of Pakistan reported as PLD 1990 Karachi 9 = PLJ 1990 Karachi 14 (FB). Again when a summary was submitted to the
then Prime Minister for according
some privileges of
VIP status to
the ex-Members of
Shooora: (Parliament), the Prime Minister
while rejecting this proposal observed "the democratic government does not
want to give VIP status to collaborators of treason".
As regards the
ridiculing of the superior judiciary, I would not like to dilate upon it much
and suffice by observing that the holding of a seminar in respect of a case
decided by this Court and the Supreme Court of Pakistan just to criticize the
same in a manner which brings the superior judiciary into disrespect in the
eyes of the general public cannot be held to be fair criticism of a judgment delivered as has been
canvassed by the learned counsel for the petitioner. The criticism to be termed as fair as is
apparent from the prefix of the word "criticism" has of necessity to
be unbiased, dispassionate and without motives. The holding of the seminar soon after taking over of the
Government by the Peoples Party, its being chaired
by a Governor
appointed by the
same Government and
participation in the seminar by the Prime
Minister, the Senior Minister and other Ministers as also giving it a wide
publicity through Press and through electronic media controlled by the
Government and holding of the seminar allegedly through finances awarded by the Government, may be indirectly, can in no manner
be construed as a fair criticism of a judgment. The judgment has been dubbed as
dishonest not only in the seminar but
in the speech made by the Prime Minister herself at an international platform.
The manner in which
over three dozens of Judges were dealt with through a press note issued by the Federal
Government statedly in pursuance of the judgment of the Supreme Court, which the
Supreme Court later clarified did not in any manner lay what the press note
release contained also very boldly indicates towards the "respect" that the then
Government had towards the
superior
judiciary. The clarificatory judgment of the Supreme Court of Pakistan delivered after the
release of the press note aforementioned released by the Federal Government
has also been described as a manipulated and manoeuvred judgment in a note
sent to the President by the former Prime Minster.
No denial whatsoever was put forth during
the arguments by the learned counsel for the
petitioner to the whole sale and indiscriminatory appointments in the civil
service of Pakistan and the services of such statutory corporations as are working under the Federal Government. The learned
Attorney General gave a high figure
of 26.000 of such appointments, which were made not only purely on
political basis, the appointees being
members/workers of the Pakistan Peoples Party only, but the same were also
without consideration of merits and of even such persons who being dismissed Government servants were ineligible for reappointment. A classic example is that on the
recommendation of the husband of the
former Prime Minister, an Additional District and Sessions Judge working in
the Province of Sind was appointed to the post of Director Administration in PIA and this appointment was made notwithstanding
the clear notes of opposition by the
Chairman and Director Administration of PIA. As could be expected both the aforementioned officers of PIA were removed
from their assignments for having
opposed the desire of the Prime Minister's husband. I consider it unnecessary to go into more details in this
regard and would only refer to the appointments
of following persons who per record had been dismissed from the service of the Government and yet appointed in
violation of Rule 6 of the Government
Service (Efficiency and Discipline) Rules, 1973.
List of Officers previously dismissed under MLO-17 retired under Section 13/removed under Section 12 and recently appointed as Advisers/Special Assistants and Officers on Special duty etc. S.No. Name Previous Appt./Status New Appt./Status
1. Mr.MAkram Sheikh
2. Mr.Khalid Ahmad Khan
3. Mr. Aslam Azhar
4. Mr. Kalim Oil Khan Mr. Muhammad Khan Junejo Mr. Younis Saeed Director FLA (Dismissed under MLO-17) eputy Commissioner Larkana (Dismissed under MLO-17)Vice-Chairman, State Films Authority (Dismissed under MLO-17).
Police Service (Dismissed due to absence)
Home Secretary Sind (Dismissed under MLO-17).
Managing Director National Book Foundation (Dismissed on charges of
Assistant to Adviser on Foreign Affairs and National Security in EPS 22
OSD for Cabinet Affairs with the status of Minister of State (Resigned on 6.12.1989).
OSD
7. Col.Ilyas Shamim. Pakistan Army Managing Director (Awarded 7 years Pakistan Steel Mills Rl on charges of desertion). 134. It is the admitted position that the wholesale appointments in the service f the Federation and in the statutory corporations were through the agency of Placement Bureau which neither had any legal status nor nay legislative backing. AAD The very working of the Placement Bureau in fact deprived a constitutional body i.e., the Federal Public Service Commission from carrying out its functions.
Can such acts of a
Government which is required to work under a written constitution and has well
defined sphere, be termed as constitutional and could it be said that if any action is
taken against such a Government by the AAE constitutional functionary empowered to do
so, his action has no nexus with the power conferred upon him for meeting such
situation?
The President in his
impugned order in para e.(ii) has also taken the following ground as basis of the said
order:-
"Authority 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 gains."
137. In support of the above ground, the learned Attorney General in particular contended as under:-
(/) That the secret funds of Intelligence Bureau were embezzled/misused by the Federal Government and its functionaries under directions of the Federal Government.
(//) That Pakistan Air Force planes were illegally used for unauthorised purposes like transportation of members of the National Assembly to Swat and back during the days of no-confidence move.
(Hi) Similarly Pakistan International Airlines planes were misused by diverting their flights to unscheduled routes for the above purpose; and
(iv) That the Prime Minister misused her authority by getting the discretionary quota of allotment of plots in Islamabad increased and then allotting the plots to members of Assemblies, their relatives, friends etc. In this respect he specially referred to the case of Lake View Hotel.
In support of item (/) mentioned above, documents Annexures A,
A/1, A/2 and A/3 had been filed.
In rebuttal, the
petitioner placed on record two affidavits of Mrs.Benazir Bhutto, former Prime
Minister of Pakistan, and affidavit each of Maj. General (Retd) Naseer Ullah
Khan Babar and Miss Nahid Khan, former Special Assistant and former Political
Secretary to the ex-Prime Minister respectively and an affidavit of his
own.
140 After the filing of the above
affidavits, the Federation placed on record an affidavit of Mr. Muhammad Ikrmaul Haq,
Deputy Director (Administration). Headquarters Intelligence Bureau,
141. The learned Attorney General had contended that out of the special crants of Rs.12,43,00,000/- allocated to the Intelligence Bureau, excepting a sum of .2,88,00,000/- which was demanded and received by the Intelligence Bureau, all other amounts were disbursed on the orders of the ex-Prime Minister's staff (during 1989-90. In this manner an amount of Rs.9,55,00,000/- remains unaccounted for, out of which some recipients have been detailed in Annexures A/1, A/2 and A/3 to the written statement filed by the Federation. When the above documents were referred to by the learned Attorney General, the learned counsel for the petitioner took time to file the affidavits referred to above viz, .. those of the petitioner, Mrs. Benazir Bhutto, Maj. General (Retd). Naseer Ullah Khan Babar and Miss Nahid Khan. He also submitted that Maj. General (Rctd.) Naseer Ullah Khan Babar wishes to be heard in camera in order to explain the (expenditure out of the secret service fund.
In the affidavit of Maj. Gen. (Retd.) Naseer Ullah Khan Babar, in
para 2, it is deposed that out of the secret fund an amount of Rs. 70 million
was spent and accounted for in the
highest national interest and
in furtherance of the security of Pakistan. In para 3 he has deposed
that he is prepared to disclose the details in the Court ( in camera) in view
of the sensitive nature of the details. In para 4 there is a denial of any payment out of the secret funds to the
former Prime Minister. The amount shown against the name of Aftab Ahmad Khan Sherpao and Malik Muhammad Waris Khan were
delivered to them under his instructions
and later withdrawn by him.
When Mr. Naseer Ullah Khan Babar appeared in camera before the Court, Mr. Abdul Sattar Najam, the learned counsel for the petitioner submitted that the deponent wishes that this matter be not probed any further as it touches the security of Pakistan and that the learned Attorney General is also agreeable to this position. We sent for the learned Attorney General and directed him to talk about this matter separately where only Mr. Abdul Sattar Najam, the learned Attorney General and Maj. Gen. (Retd.) Naseer Ullah Khan Babar should be present. After some time all of them appeared before the Court and the learned Attorney General categorically stated that he has been instructed by the authorities that Maj. Gen. (Retd.) Naseer Ullah Khan Babar may give details whatever he wants about the spending of the money to the Court. Major General (Rctd.) Naseer Ullah Khan Babar, however, did not give any details and merely stated that the amounts had been spent by him on secret missions which he is not prepared to disclose. When inquired about the details of expenditure and its accounting for, it was stated by him that he has neither any accounts to render nor the amounts have been accounted for in the relevant books of accounts. He stated that there ate no instructions/rules requiring the maintenance of accounts of secret service funds.
144. The above
assertion of Maj. Gen (Retd.) Naseer Ullah Khan Babar stands contradicted by the detailed instructions
regarding the administration, proper utilization nd maintenance of accounts of
secret funds. Some of these instructions
were read out to him which, inter alia, include the maintenance of cash book, the cash receipt vouchers, cancellation
of vouchers, demand slips supervisory
checks and proformas of receipts to be obtained from the recipients of amounts out of the fund aforementioned. In the
cash receipt proforma which is annexed
with the aforementioned instructions apart from the signatures of the recipient, an Officer has to attest the payment and
also give the pseudonym of the
recipient, if there be any. It may also be pertinently
observed here that the instructions
aforementioned provide for proper utilization of such funds and amounts not
properly spent have to be reimbursed by the concerned officer. AAH According
to a circular
issued by the
Deputy Director (Administration); Intelligence Bureau on 16.9.1981 which has also
been filed with the affidavit of Mr. Muhammad Ikramul Haq aforementioned it is an
erroneous impression that secret service
fund is exempt from audit. This false impression, it is stated in the circular, needs to be dispelled. The further
averment therein is that the only difference
between the secret service fund and other normal funds is that whereas the laltcr is audited by the Comptroller and
Auditor General, the amounts of secret
fund arc audited by the Cabinet Secretary. The same norms as applicable to the
normal funds apply with equal force to the secret service expenditure.
145. In the light of the above position qua the secret fund, the statement; made before the Court by Maj. Gen. (Retd.) Naseer Ullah Khan Babar does not AAJ inspire any confidence The explanation can hardly be given credence without j substantiation of the expenditure by documents.
146. I would not like to further comment upon this matter as the learned Attorney General has pointed out that this
misuse of secret fund is being made
subject of a Reference under P.O. No. 17 of 1977 and may only observe that in view of filtering away of huge amounts from the
Government fund, the President could
legitimately take notice of this factor for passing the order under Article
58(2)(b) of the Constitution.
There can be
no denial to the
established norm that the Government
can only be termed to be running in
accordance with the Constitution if it protects the
funds of the State and conversely if the funds arc not utilized for the
specific purpose for which the same have
been allocated, it can also be safely said that the Government is not being run in accordance with the Constitution,
Another important aspect of the matter
which remains completely unanswered
from the petitioner's side is the disbursement of these huge amounts from the secret service fund to various
Ministers during the days of no confidence motion and about the time when the election of the Prime
Minister of Azad Kashmir was held.
Yet another important factor in this regard worthy of notice is that the disbursements to persons like Mr. Aflab Ahmad Khan Shcrpao, Chief Minister of NWFP, Malik Muhammad Waris Afridi, Minister of State in the Federal Government and Mr. Muhammad Hanif Khan, Minister of the Federal Government regarding Kashmir Affairs who were not connected with the secret service but had played important role in defeating the no confidence motion and the election of a nominee of the ruling party as Prime Minister of Azad Kashmir remain wholly unexplained by the petitioner.
In support of the contentions appearing at
Nos. (ii) and (iii) above, the learned
Attorney General had placed on record affidavits of Group Captain Tahir H. Siddiqui of PAF Base, Chaklala, as also of Mr.
Nasim Akhtar, Chief Warrnt Officer of
the said Base, with which affidavits have been annexed the summary of uplift of passengers of PAF Aircrafts together
with the passengers manifest and statement of expenditure incurred on the
flights of Pakistan Air Force Aircrafts used for carrying the MNAs during the days of no confidence move
against the ex- Prime Minister.
Similarly, details of use of flights of PIA for the above purpose under affidavit of Mr. Usman Khan, Director
Administration, PIA, have also been
placed on record.
No denial whatsoever has been put forth by
the petitioner in respect of the allegation
of unauthorised use of the Aircrafts of PAF and PIA for political gains.
Practically the same
uncontroverted position obtains as regards the increase in
the discretionary quota
of allotment of
plots in the
Capital Development Authority and misuse of the enhanced allocation of quota by
the Prime
Minister for political gains.
Although the learned Attorney General
referred to some other misuses of resources
of the Government and Statutory Corporations/Banks etc. for political ends, I refrain from giving any specific
findings thereon as they may also be subject
of References/other legal proceedings
and any comments may prejudice
either of the parties in those proceedings.
153.1 would like to conclude the above discussion by saying that the ground taken in this regard by the President can be reasonably said to be one which has a nexus with the preconditions of Article 58(2) (b) of the Constitution.
154. Having dealt with the main controversies that required determination, I now take up the other two objections that have been raised during these proceedings. These are:
(i) The constitutionality and validity of Eighth Amendment
(ii) The validity of appointment of Mr. Ghulam Mustafa Jatoi as the head of the caretaker cabinet appointed by the President after dissolving the National Assembly.
155. As regards the objection to the validity of the Eighth Amendment in the Constitution raised by the learned counsel for the petitioner in W.Ps. NO. 5849 of 1990 and 379 (Peshawar) of 1990, suffice it to observe that this question was raised in case "Malik Ghulam Mustafa Khar and others versus Pakistan and others" (PLD 1988 Lahore 49 = PLJ 1987 Lahore 660 (FB)) but was repelled by a Full Bench of this Court. The Supreme Court of Pakistan while deciding the appeal against that judgment, did not take a contrary view. Furthermore, as the matter is pending before the Supreme Court in appeal filed by Abdul Mujeeb Pirzada against the judgment of Sindh High court, I do not consider it appropriate to reopen this controversy especially when in the two petitions filed by directly affected persons, this argument was not raised, rather all the other learned counsel made a joint request to leave this matter for decision by the Supreme Court of Pakistan.
156. Adverting now to the
appointment of respondent No. 2 as the Prime
Minister
to head the caretaker Cabinet, the learned counsel for the petitioner contended that since respondent No. 2 was the
leader of the opposition in the dissolved Assembly, he could not have been
appointed as the Prime Minister after dissolution. It was also submitted that the
President had appointed respondent No. 2 as the Prime Minister instead of
caretaker Prime Minister and for this reason also the appointment of respondent
No. 2 was bad in law. It was next argued that respondent No. 2 being a caretaker Prime Minister,
could only work on day to day basis but
could not take policy decisions. Reliance in this connection
was placed on the observation made by
one of the learned Judges of Full Bench constituted in the case of Khawaja Muhammad Sharif v. Federation (Supra).
157. In my view none of
the contentions raised by the learned counsel for the petitioner has any
substance. Under Article 48(5) of the Constitution of Islamic Republic of
Pakistan, the appointment of caretaker Cabinet and its composition is in the sole
discretion of the President. The above provision when read with Article 91(8) of the Constitution leads to the
irresistible conclusion that it is open to the President to appoint any person of his choice as a Minister or Prime
Minister as the case may be of the
caretaker Cabinet. No fetters having been placed on his choice by the Constitution, it is idle on the part
of the petitioner to contend that this
Court should do so. The discretion vesting in the President under clause (5) of
Article 48 having not been circumscribed by any condition like the power
of the President under Article 58(2)(b)
which opens with the words in clause (2) ibid.
" Notwithstanding anything contained in clause (2) of Article 48.' is not liable to be interfered with by this Court.
158. Regarding the
contention of the learned counsel for the petitioner that respondent No. 2 had
been appointed as Prime Minister instead of a caretaker Prime Minister, the learned counsel has
referred to a Notification of assumption of
charge of office by respondent No. 2. The learned counsel for respondent No. 2 on the
other hand has
produced copy of
Notification of appointment
of respondent No. 2 which shows
that he has been appointed as head of the care taker cabinet. There is thus no basis for this contention of the
learned counsel for the petitioner.
159. So far as the powers of the Prime
Minister/caretaker Prime Minister as head of
the caretaker cabinet are concerned, I could not find any material difference between the two except that the tenure
of the caretaker Prime Minister is to
last till induction into office of the regularly elected Prime Minister by the new Assembly after the election. I am strengthened
in this view by the fact that no separate
oath of office has been prescribed for the caretaker Prime Minister while assuming office. It is also interesting to note
that the words "caretake Prime Minister"
as such do not appear anywhere in the Constitution.
160. It is a well settled
principle for construction of a Constitution that it is to be construed as an
organic whole and its different provisions are not only to be read conjunctively so
as to give effect to each other but it is also to be ensured that the provisions are
well harmonized. A perusal of the various constitutional provisions referred
to above lead me to conclude that the objections raised by the learned counsel
for the petitioner are without substance and thus not tenable. The reliance
placed by the learned counsel for the petitioner on Madan Murari Verma v. Choudhuri
Charan Singh and another reported as AIR 1980 Calcutta 95, is not apt as there are no
parallel provisions in the Constitution of India nor does the expression
"caretaker cabinet" figure in the said Constitution.
161. Resultantly the appointment of respondent
No. 2 as the Prime Minister heading the
caretaker cabinet having been made by the President in exercise of his discretion is unexceptionable and cannot
legitimately be questioned before this Court.
162. It was for the
reasons detailed above that all these writ petitions were dismissed. The
parties are, however, left to bear their own costs.
Manzoor Hussain Sail, J.--I have had the benefit of reading the elaborate reasons recorded by the learned Chief Justice and my learned brother, M. Mahboob Ahmad, J, in support of the unanimous decision rendered by the Full Bench of this Court on 14th October, 1990, with which I generally concur, but feel tempted to highlight only one aspect of the case.
On the 6th August 1990, the Constitutional history of Pakistan recorded another important event, in that, the President of Pakistan, on the basis of his assessment of the situation prevailing in the country, found that the Government of the Federation was not being carried on in accordance with the provisions of the Constitution and appeal to the electorate was necessry, therefore, in exercise of the powers vested in him, under Article 58(2)(b) of the Constitution, dissolved the National Assembly of Pakistan and in consequence, the Prime Minister and her cabinet ceased to hold office with immediate effect.
As the text of the Dissolution Order and relevant Articles of the Constitution find reproduction in extenso, in the detailed reasons recorded by the learned Chief Justice, therefore, for reference only relevant portions thereof are mentioned hereunder:-
48. President to act on advice etc.
(1) In exercise of his functions, the President shall act in accordance with the advice of the Cabinet (or the Prime Minister).
Provided....................................................
(2) Notwithstanding anything contained in clause (1) the President shall act in his disrection 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.
(3) Omitted
(4) ........................
(5) ........................
(6) ........................
(7) ........................
58. Dissolution of National Assembly.
(1) 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 ....................
(2) Notwithstanding
anything contained in clause (2) of Article 48,
the President may also dissolve the
National Assembly in his iscretion where in his opinion:-
(b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and appeal to the electorate is necessary."
The close examination of the aforementioned provisions of the Constitution shows that Article 58(2)(b) empowered the President to dissolve the National Assembly in his discretion provided he was satisfied that the Government of the Federation was not being carried on, in accordance with the provisions of the Constitution and appeal to the electorate was necessary, whereas Article 48(2) provided immunity from challenge, all actions of the President performed in exercise of his discretion as specified in the Constitution.
It is noteworthy that Article 48 and for that matter even Article 58, in 1973 Constitution (as it originally stood) did not empower the President to dissolve the National Assembly in exercise of his discretion nor such an action was saved from challenge. On the contrary, the President was bound by the advice tendered by the Prime Minister as envisaged under Article 48(1) and under clause (3) his orders required counter-signatures of the Prime Minister for their validity.
This state of affairs continued until on 5th July 1977, the then Chief of the Army Staff imposed Martial Law in the country and the 1973 Constitution was held in abeyance. Simultaneously he became the Chief Martial Law Administrator and issued Laws (Continuance in Force) Order 1977, wherein it was stipulated that the country would be governed as nearly as possible in accordance with the provisions of 1973 Constitution. Thereafter, on 23rd March 1981, he promulgated Provisional Constitution Order, wherein besides other provisions, included certain Article of 1973 Constitution and governed the country in accordance with that Order, until on the 2nd March 1985, he issued another order, known as The Revival of the 1973 Constitution Order 1985 (P.O.No.14 of 1985) whereby he introduced extensive amendments in 1973 Constitution. Both Articles 48 and 58 of the Constitution were also amended. The amendments introduced in these Articles conferred unfettered powers on the President to dissolve the National Assembly in his discretion and his action was immune from challenge on any ground whatsoever. The amendments made in the 1973 Constitution were not well received by the people. The members of the Parliament elected on the party-less elections also started a move against these amendments specially to place limits on the powers of the President .to dissolve the National Assembly, known as the Constitution (Eighth Amendment) Bill of 1985. It proposed further amendments in the Articles of the Constitution introduced through P.O. 14 of 1985. The amendments suggested in Articles 48 and 58 of the Constitution aimed at placing certain limits on the powers of the President to dissolve the National Assembly. The Parliament passed the bill and finally adopted provisions of Articles 48 and 58, in the Constitution, circumscribed the powers of the President to dissolve the National Assembly in a manner that the National Assembly could be dissolved only if the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and appeal to the electorate was necessary. The validity of extensive amendments made in the Constituion, through Eighth Amendment Act, 1985 by Parliament elected through party-less elections came under challenge before superior Courts of the country, inter alia, on the grounds, that the same were introduced in the Constitution by an unauthorised body, had the effect of illegally altering the basic structure of the Constitution and had made serious in-roads in the Islamic, democratic and Parliamentary form of the Constitution. The Sindh High Court in Muhammad Bachal Memon v. Hie Government of Sindth through Secretary Department of Food and two others (PLD 1987 Karachi 296 (FB) the Lahore High Court in Malik Ghulam Mustafa KJiar & Others v. Pakistan and others (PLD 1988 Lahore 49 (F.B) and the Sindh High Court in another case, titled Abdul Mitjeeb Pirzada v. Federation of the Islamic Republic of Pakistan & others (PLD 1990 Karachi 9 (F.B) examined the vires of the Eighth Amendment Act 1985 and repelled the contentions raised for its invalidity. Similarly, the Supreme Court in Federation of Pakistan v. Malik Ghulam Mustafa KJiar (PLD 1989 SC 26) did not interfere in appeal and assumed the amendments having been validly made by the Parliament. The appeal arisen from the decision of the Sindh High Court in Abdul Mujeeb Pirzada's case is still sub-judice before the Supreme Court.
The main objection raised by Dr. A.Basit, Advocate to the amendments in Articles 48 and 58 of the Constitution is that the same have concentrated arbitrary powers in the hands of the President, affecting the balance of power between the Prime Minister and the President. Previously, under the 1973 Constitution (as it originally stood), the balance of power was in favour of the Prime Minister, but after the introduction of the Eighth Amendment Act 1985, it tilted in favour of the President. The question as to what should be the balance of power inter se the President and the Prime Minister is a political question and any endeavour to resolve such an issue would amount to entering into political arena beyond the jurisdictional domain of judiciary. It is desirable that the politically sensitive questions should be resolved on the floor of the House by elected members of the Parliament. Undoubtedly, there is no clog on the competency of the Parliament to amend the Constitutional provisions so as to suit the genesis of the people.
The salutary feature of our Constitution
is that it recognises sovereignty belonging
to Allah Almighty alone and it is only the authoirty delegated by him, which is exercised by the chosen representatives
of the people of
Ihsan-ul-Haq Chaudhary, J.--I have had the privilege of going through the reasons recorded by the learned Chief Justice and my learned brother Mian Mahboob Ahmad J. in support of the short order rendered by this Court on 14.10.1990 with which I am full agreement and have nothing to add.
Malik Muhammad Qayyum, J.--I have had the advantage of going through the reasons given by the learned Chief Justice and my learned brother Mahboob Ahmad J. in support of the short order dated 14th of October, 1990 whereby this writ petition and four similar petitions were dismissed and agree therewith entirely. I have nothing to add.
(MBC) Petition dismissed.