h1

P L D 1957 SC 219

REFERENCE NO.1 OF 1957 BY PRESIDENT OF PAKISTAN UNDER ARTICLE 162      

Per Muhammad Munir, C J.

(a) Constitution ofPakistan(1973), Article 186 & INT.
Constitution ofPakistan(1956), Article 162 & INT.

      The answer to the question seems primarily to depend on and 225 of the Constitution, but since some general principles of parliamentary Government have been invoked in the course of arguments, the question has to be set against a short background of our constitutional history.

       In the light of the opinion of the Federal Court in the Reference made to it under section 213 of the Government of India Act, 1935, reported as Reference No. 1 of 1955 (1) the Governor-General of Pakistan in supersession of the Constituent Convention Order, 1955, promulgated on 28th May 1955, the Constituent Assembly Order, 1955, by which he directed fresh elections to the Constituent Assembly, which had been dissolved by his Proclamation of 24th October 1954. (p. 226) A

      One General rule that emerges, and it is an ancient rule, from discussions on the subject is that in the interpretation of written instruments, whether they are constitutional charters or ordinary statutes or other documents. (p. 233) B

(b) Constitution ofPakistan(1973), Articles —, 107, 224, 276, 268, 277, and 267
Constitution ofPakistan(1956), Articles 225, 83, 141, 222, 223, 230, and 234

       We are of the view that the Governor has no power to dissolve the Provincial Assembly functioning under Article 225, and in accordance with this opinion the reply to the Reference is in the negative (p. 256) K

       on these words there can be no escape from the conclusion that an interim Provincial Assembly is entitled to exercise the powers and is under an obligation to perform so long as a new Provincial Assembly is not constituted under the Constitution to take its place. The provision in the clearest possible terms, fixed the duration of the interim Assembly, which commences from the Constitution Day and ends on the day on which a new Provincial Assembly is constituted under the Constitution. Therefore, until that event happens the interim Assembly must continue to function and any premature dissolution of it by and act of the Governor will be in contravention of the article, because ex-hypothesi if the interim Assembly is dissolved, the dissolution must necessarily by followed by a period the powers and perform the duties imposed upon a Provincial Assembly by the Constitution. (p. 237) L

      Mr. Manzur Qadir contends that on a true construction of Article 225, and if that Article is read with Article 234,  it is possible for the President to order the Constitution of a new interim Assembly if the existing Assembly be dissolved by the Governor. The argument is that Article 225 fixes the extreme limit of the period during which a temporary legislature has to function and that during this period more the one interim Assembly may function. This position seems to have been adopted by him in order to escape from the consequences of the awkward position that must result if an interim Provincial Assembly be dissolved by the Governor when the machinery for bringing into existence another Assembly under the permanent provisos of the Constitution has not been set up. (p. 237) M

      This argument forcibly demonstrates the desperate straits to which Counsel appearing on behalf of the President are driven in their in their endeavour to claim for the Governor the power to dissolve. The Constitution defines the qualifications which a candidates for election to the Provincial Assembly, or a voter in a constituency for such Assembly must posses; but Mr. Manzur Qadir would give to the President under Article 234 the power to destroy, though for a temporary period, the very basis of  the new Constitution by claiming for him the power to form the constituencies  and to order the preparation electoral rolls in direct violence of the Constitution merely to implement the decision of a Governor. Thus the possible alternatives suggested to met the situation that may arise from an immediate dissolution lands us into a jungle of confusion, leading to the irresistible conclusion that no such situation was envisaged by those who gave us the Constitution. (p. 238) N

      We have indivated above in the analysis of the Article that until a Provincial Assembly is constituted under the privations  of the Constitution, the powers of a Provincial Assembly have to be exercised and the duties of such Assembly performed in the case of East Pakistan by “the Provincial Legislative Assembly for the Province  of East Bengal Functioning  immediately before the Constitution Day” and in the case of West Pakistan by “the Legislative Assembly of that Province consisting of persons elected thereto under section 11 of the Establishment of West Pakistan Act, 1955”. Do not these words establish the identity of persons who subject to any casual vacancy being filed under clause (3) of that Article, are alone and to the exclusion of all others to exercise the powers and perform the duties of the Provincial Assembly? (p. 238) O

      It is an important point, that if the power to dissolve an interim Provincial Assembly vets n the Governor, a similar power must be conceded to the President in respect of the National Assembly functioning under Article 223. For a dictatorially minded President, National Assembly and constitute new ad hoc Assembly consisting of members of his own way of thinking who by a two-third majority could repeal the whole Constitution and frame a new Constitution to serve their own ends. (p. 239) P

      If these words indicate the end of the period for which the Legislative Assembly of East Bengal or the Legislative Assembly of West Pakistan is to exercise the powers and perform the duties of a Provincial Assembly there can be no manner of doubt that in the absence of words indicating that this period may be arrested or inter-rupted by the happening of some other event or contingency, the Legislative Assembly of both the Provinces must throughout the period perform the functions of a Provincial Assembly under the constitution. (p. 240) Q

      Sardar Abdur Rab Nishtar referred to numerous provisions in the Constitution where the word ‘until’ has been used and the point that he sought to establish, and which he succeeded in establishing, is that it in a provision of the Constitution a terminus a quo is given  and the end of the period of time is also indicated by the word ‘until’ then in the absence of words showing, expressly or by necessary implication, that the continuity of the period may be disturbed, the period continues until the happening of the event mentioned in the until-clause. (p. 240) R

      Within its own terms, Article 225 does not contain the remotest suggestion that the Assemblies recognised by the article as Provincial Assemblies are liable to dissolution before the constitution of Provincial Assemblies under the provisions of the Constitution. Where the legislature intends an Assembly, elected for a term or an even, to be liable to earlier dissolution if always says so, expressly or by necessary intendment, and we are not aware of any Constitution in the world with a Parliamentary form of Government where the executive, in the absence of any such words, can claim the right of directing an earlier dissolution. (p. 242) S

       The very fact, therefore, that in the case of continuance of the Legislative Assembly of West Pakistan as a Provincial Assembly of that Province the framers of the Constitution deliberately departed from the language of section of 11 of the Establishment of West Pakistan Act, which was undoubtedly before them because clause (2) of Article 225 expressly refers to it, must be taken to mean that until the new Assembly had been constituted the existing Assembly was intended to be in dissoluble. (p. 242) T

       There is yet another reason for holding the Article 225 did not contemplate the dissolution of the temporary Provincial Assemblies, and that is, that while that Article provides by clause (3) the manner in which a casual vacancy occurring in a Provincial Assembly may be filled, it says nothing how that Assembly is to be reconstituted for the interim period, if it were dissolved. (p. 243) U

        Article 83 in respect of the Governor’s power to dissolve is thus subject to Article 225 and there is no repugnancy between them (P. 247) V

        That the Article has to be read in its context, and when so read, it does not, by its own force, at all apply to temporary occurs in Chapter II of Part V of the Constitution which deals with the constitution, duration and procedure of the Provincial Legislature. (p. 244) W

        Therefore, when Article 83 states that the Governor may summon prorogue or dissolve the Provincial Assembly, the reference is to the Assembly the composition of which is defined by Article 77 and 78 of the Constitution and this is apparent from clause (3) of that Article which fixes a term of five years for that Assembly. The temporary Assemblies functioning under clauses (1) and (2) of Article 225, however, are differently composed, were elected in a different manner and do clearly not have a five-year term. They are, therefore, not governed by Article 83 except to the extent that Article 225 itself provides. Thus Article 225 is essentially in the nature of a Proviso to the general provision of the Constitution which relate to the composition and duration of future Provincial Assemblies. (p. 244) X

        The true rule of construction in such cases is that where there are two sections dealing with the same subject-matter, one section being unqualified and the other containing the qualification, effect must be given to the section containing the qualification. Mass v. Eophick (1). This rule has sometimes been enunciated also in the form that where a general intention is expressed and also a particular intention which is incompatible with the General one the Particular intentions is considered and exception to the general one. (p. 246) Y

        It is next urged that on this construction of the relative functions of Article 83 and 225 the Governor, if he has no power to dissolve, would also not have the power to summon or prorogue the interim Assembly. The argument has not force because while the Governor’s power to summon or prorogue is a necessary incident to the exercise of powers and to dissolve is not. On dissolution an Assembly, though its members may live and the institution may exist in the Constitution, dies and ceases to the capable of exercising any powers or performing any duties. (p. 246) Z

        It cannot, therefore, be said that there is any superfluity in the words of Article 83(1); nor can it be said the because the Governor has the power to dissolve a provincial Assembly, that power must be capable of being exercise in respect of the temporary or, as Mr. Brohi described it, the ad hoc Assembly, the duration of which is fixed by the Constitution in a manner which necessarily excludes the power to dissolve. On that construction of Article 83 and 225 there can be no conflict between the two because whereas the Governor has the general power to dissolve a Provincial Assembly, the exercise of that power is negated by a special provision which has operation for only a limited time. (p. 247) AA

        But assuming for the sake of argument that there is a conflict between those two Articles, in that case Article 83 which is general must yield to Article 225 which is particular, on the maxim, “Generalia specialibus non derogant” (general) words or provisions do not affect special words or provisions) that is, if there be a conflict between a general provision and a particular or specific provision, the latter must override the former. (p. 247) BB

        It is not possible to conceive of dissolution without a fresh election being held. (p. 248) CC

        The position as appears from the inquiry made from the Election Commission, seems to be that such Assemblies are not expected to be constituted before July next though both the Delimitation Commission and the Election Commission were appointed in June Last year. This legal and factual position has to be considered in construing Article 41 of the Constitution and we consider it to be absurd for anyone to suppose that Article was intended to apply to the dissolution of the temporary Assemblies, and if that Article does not apply to such a situation and the Election Commission is not bound to hold general elections within six months of the dissolution of such Assemblies, there is no time limit in the Constitution within which the first National Assembly and Provincial Assemblies have to be set up under the Constitution. And if that Article does not govern the situation arising from the dissolution of a temporary Assembly, such dissolution could not but lead to the establishment of a completely irresponsible Government by the President or Prime Minister at the Centre or by the Governor or the Chief Minister in a Province for an indefinite period, a Government which not only uproots the foundations of our Constitution but is also opposed to be Preamble which states inter alia, that the new State is to exercise its power and authority through the chosen representative of the people. It seems to us, therefore, that it was for this reason that Article 225 was worded as it is, and the Constituent Assembly considered it necessary to provide that until a new Provincial Assembly comes into existing on the day of the commencement of the Constitution was to continue to exercise the powers and perform the duties of the Provincial Assembly under the Constitution. (p. 251) DD

       We cannot, therefore, hold that clauses (3) and (4) of Article 230 read with Article 222 necessarily refer to the power to dissolve any of the temporary assemblies. (p. 254) EE

       Article 234 is vital Article in the Constitution, and if it proceeds on the continued existence of the interim National Assembly throughout the transitional period, it would tend to show almost conclusively that Assembly is not liable to dissolution. And if dissolution of the interim National Assembly had been intended, there would have occurred in Article 234 some such provision as the proviso to clause (2) to Article 239. This being the position as regards the National Assembly set up under Article 223 of the Constitution, the case for the continued existence of the Provincial Assembly during the transitional period is a fortiori stronger because Article 225 enjoins the temporary Assemblies to perform the duties of the Provincial Assemblies constituted under the Constitution and to exercise the powers of those Assemblies. (p. 254 & 255) FF

      That Article provides that “if a vacancy occurs in the office of the President elected under this Article by reason of his death, resignation or removal from office it shall be filled by a person elected by contained in the Sixth Schedule.” Now conceiving a case where the President has dissolved the National Assembly and the then has himself resigned his office, there is no provision in the Constitution by which another President may be appointed, with the result that on the happening of such a contingency the Constitution must cease to function, because Article 36 itself which enables the Speaker to act for the President contemplates an immediate election of the President and not at all a case where the machinery for the election of the President does not at all exist. Clause (6) has been referred to in the course of arguments in some other connection by the learned counsel who have contended that the power of dissolution of temporary Assemblies exists, but, in our opinion, that is a provision which conclusively shows that the framer of the Constitution intended the National Assembly to function without any break throughout the transitional period. Even if Mr. Manzur Qadir’s contention that the existing National Assembly can be substituted by another Assembly to be chosen in a manner to be prescribed by the President under Article 234 be accepted and it be supposed that after dissolving the National Assembly the President and the Speaker are both involved in an inability, there will be a standstill of the constitutional machinery. (p. 255) GG

 (c) Constitution ofPakistan(1956), Interpretation of Statutes

       “While there is considerable similarly between an exception and a proviso—each restrains the enacting clause fall within the general terms of the Statute,—there is a technical distinction between them although even that is frequently ignored and the two terms used synonymously. The exception, however, operates to affirm the operation of the Statute to all cases not excepted and excludes all others exceptions: that is, it exempts something which would otherwise fall within the general words of the Statute. A proviso, on the other hands, is a clause added to an enactment for the purpose of acting as a restraint upon, or as the qualification of the generality of the language which it follows. Some times, however, as a precautionary measure, it is used to explain the general words of the Act and to exclude some ground of misinterpretation which would extend it to cases not intended to be brought within its operation or preview.”

       In order to decide whether a provision is or is not in the nature of decide whether a provision is or is not in the nature of a proviso or an exception, what has to be seen is the scope of the enactment, the object it was intended to achieve, thew scheme of the enactment and the language used in, and the reasons for enacting the exceptional or special provision. (p. 443) HH

 (d) Constitution ofPakistan(1956), Interpretation of Statutes

       Nascitur a Scoiis is the rule of construction applied to all written instruments. Therefore, particular phrases of a constitution must be construed with regard to the remainder of the instrument and to the express intent of the constitutional convention in adopting it (11 Am. Jur., Constitutional Law Art. 53). (p. 235) II

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