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NLR 1993 SCJ 154

AHMAD TARIQ RAHIM

V/S

FEDERATION OF PAKISTAN

Constitution of Pakistan (1973), Article 58(2)(b) —

Dissolution of National Assembly, challenged with contention that horse-trading of elected representatives, corruption and nepotism, violation of individual Constitutional provisions, all have been taking place in the past
and even after dissolution of National Assembly and, as such, these factors could not be made grounds for dissolution. Held (i) Constitution of Pakistan — Contd. Such an argument may be attracted to the gallery but it cannot prevail as once the evil is identified, remedial and corrective measures within Constitutional framework must follow, (ii) Public functionaries like President, holding public power in trust, cannot and must not remain silent spectators in such circumstances and they must react.

Constitution of Pakistan (1973), Article 58(2)(b) —

Dissolution of National Assembly. Contended that National Assembly was the only instrumentality of State directly elected by people and it should not be at the mercy of President who is indirectly elected Constitutional functionary. Held: (i) This argument may be theoretically sound and clausible but cannot sustain in presence of words of Constitution which make provision for it, (ii) Legal and moral basis for reserving or reposing such a power and its occasional exercise has the support of treaties on Constitutional Law, (iii) Specific power, jurisdictional requirement all being provided in Article 58(2)(b), it was not necessary to either go back deep into history or to infer a residual but necessary power of President in the matter.

Constitution of Pakistan (1973), Article 58(2)(b) —

Dissolution of National Assembly. Order challenged with contention that there were available to President other alternative Constitutional remedies before resorting to a drasting step like dissolution of National Assembly. Held: (i) Constitutional remedies under Article 186(1), Article 233(1) or under Article 184(1) could be exercised by President on advice of Prime Minister and not in his discretion, (ii) Only Constitutional remedy available to President was one under Article 58(2)(b) if circumstances existed which warranted dissolution of National Assembly.

Constitution of Pakistan (1973), Article 58(2)(b) —

Dissolution of National Assembly would not be justified if Government of Federation is not being carried on in accordance with Constitution as in such case fault would be that of President who is required to act with aid and advice of Cabinet headed by Prime Minister. Similarly, inefficient or faulty carrying on the Government of Federation would not fall within ambit and scope of exercise of power under Article 58(2)(b). Held: (i) Provision of Article 58(2)(b) can be invoked only when Constitutional machinery has completely broken down. (ii) Defaults or defects of Government, violation of law, would not justify dissolution of National Assembly. (iii) President and Cabinet have to work in unison and President cannot throw bucket and dissolve National Assembly for default of Government on whose advice he acts.

Constitution of Pakistan (1973), Article 58(2)(b) —

Dissolution of President with functionaing of Prime Minister or National Assembly cannot be made grounds for dissolution of National Assembly in light of principles previously laid down by Supreme Court in NLR 1989 SCJ
619 (Haji Saifullah’s case).

Constitution of Pakistan (1973), Article 58(2)(b) —

Dissolution with Leader of the House would not justify President to dissolve whole National assembly and appoint Leader of Opposition as Caretaker Prime Minister. Appointment of Leader of Opposition as Caretaker Prime Minister shows that whole National Assembly was not at fault.

Constitution of Pakistan (1973), Article 58(2)(b) —

Dissolution of National Assembly by the President of Pakistan — Some of the acts of commission and omission of Federal Government where from President was justified in forming the opinion that the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary enumerated.

Constitution of Pakistan (1973), Article 58(2)(b) —

Power to dissolve National Assembly can be exercised on advise to President by Constitutional authority empowered to give advice to President, namely, Prime Minister. Power under Article 58(2)(b) would not vest in President and would not be available for exercise on advice from authorities or persons not authorized by Constitution to tender advice to President. Held: President fell in error in exercising dissolution power on advice tendered, taken or acted from authorities or persons other than Prime Minister.

Constitution of Pakistan (1973), Article 58(2)(b) —

Powers to dissolve National Assembly.  Its efficacy and scope discussed in judgment.

Constitution of Pakistan (1973), Article 58(2)(b) —

Relief of restoration of dissolved National Assembly would not be granted in a case where dissolution is found unwarranted but dissolved assembly has been succeeded by a newly elected Assembly whose members are not impleaded as parties to writ petition filed to challenge dissolution order. Held: (i) It is elementary principle of law that no adverse order can be passed against anybody without hearing him. (ii) No order unseating members of newly elected Assembly can be passed by ordering restoration of dissolved Assembly.

Constitution of Pakistan (1973), Article 58(2)(b) —

Reality and letter of law both point to conclusion that power to dissolved National Assembly was personal for late President Ziaul Haq, and it pewrished with his demise. Sophistry would not suffice to say that power to dissolve National Assembly under Article 58(2)(b) devolved on successor Amendments in Article 58(2)(b) read with Article 41 lapsed with demise of late President and no one can step into his shoes and put on his mantle.

Constitution of Pakistan (1973), Articles 58(2)(b) and 112 —

Dissolution of National/Provincial Assembly elected in November 1988 elections.  These Assemblies electing President who by Order of 6.8.1990 dissolving National Assembly followed by dissolution of Provisional Assembly. Observed: (i) It was perhaps lost sight of that if National and Provincial Assemblies were so bad as to be dissolved, it were these very Assemblies which had not long ago elected President. (ii) Were they good then and had become bad so soon. (iii) Created condemning creators does not sound well.

Constitution of Pakistan (1973), Articles 58(2)(b) and 112 —

Dissolution of National Assembly would not justify dissolution of Provincial Assemblies as assumption that Government of Federation is not being carried on in accordance with Constitution becoming basis of dissolution of National Assembly would not warrant conclusion that Provincial Governments wre also not being carried in accordance with Constitution. dissolution of Provincial Assemblies simultaneous with dissolution of National Assembly would show that Constitution was being taken as if it provided a unitary form of  Government which obviously it did not do.

Constitution of Pakistan (1973), Article 58(2)(b) —

Dissolution power of President under Article 58(2)(b). Its scope, meaning in past and in contemporary decisions outside Pakistan discussed in judgment.

Constitution of Pakistan (1973), Article 58(2)(b) —

Factual background should not be lost sight of in interpreting Article 58(2)(b). It should not be interpreted in a manner that it invests power in President more than King or Queen of England possessed even when sun did not set over one or other part of their dominions or territories, nor more than what President of most powerful national in world possesses.

Constitution of Pakistan (1973), Article 58(2)(b) —

Failure of Prime Minister to accede to persistent requests made by Provinces for making functional Constitutional institutions like Council of Common Interests and National Finance Commission despite intercession by President, would justify exercise of power under Article 58(2)(b) by President with dissolution of National Assembly. Held: Dissolution order was unassailable as inspite of intercession of President, no heed was paid to summon Council of Common Interests and National Finance Commission, Constitutional obligations were not discharged thereby jeopardizing the very existence and sustenance of Federation.

Constitution of Pakistan (1973), Article 58(2)(b) —

Grounds which may not independently be sufficient to warrant dissolution of National Assembly, can be invoked, referred to and made use of alongwith grounds which are sufficient to justify dissolution action.`

Constitution of Pakistan (1973), Article 58(2)(b)
read with Articles 41(7) and 43 —

Power to dissolve National Assembly was personal to General Ziaul Haq and pertained to late President. It is not available to his successors and need not be stretched any further to make confusion worse founded. Historical perspective, vicitudes of Constitutional developments and Constitution do not permit successor President to dissolve National Assembly.

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