h1

P L D 1988 LAHORE 725

KHAWAJA MUHAMMAD SHARIF

V/S

FEDERATION OF PAKISTAN AND OTHERS

(a) Constitution of Pakistan (1973), Articles 58, 199 & 48:

Articles 199 & 58(2)(b) — Superior Judiciary is not prohibited to interpret and enforce the Constitution — Action has to be taken in facts objectively — When an action is taken or power is exercised without any “basis” or beyond the power conferred, or for extraneous consideration or a consideration has been taken into account which was impermissible, the order as a whole would be without lawful authority. [p.756]B

Articles 58(2)(b) & 48(2) — Dissolution of National Assembly by the President — Satisfaction of the President — Nature of — Whether satisfaction is “subjective” or “objective” or it is his “discretion” or “opinion”, the President cannot exercise his powers under the Constitution on wish or whim — Blanket coverage of validity and unquestionability of discretion under Article 48(2) not available — Court’s jurisdiction not expressly excluded.

The crux of the controversy in the present case was whether the order of the President dissolving the National Assembly on 29.5.1989 was in accordance with the powers conferred on him under Article 58(2)(b) of the Constitution. [p.756]C

Whether it is “subjective” or “objective” satisfaction of the President or it is his “discretion” or “opinion”, this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a
grave nature that the representatives of the people who are primarily entrusted with the duty of running the affairs of the State are removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in a Court of Law.  No doubt, the Courts will be chary to interfere in his “discretion” or formation of the “opinion” about the “situation” but if there be no basis or justification for the order under the Constitution, the Courts will have to perform their duty cast on them under the Constitution. While doing so, they will not be entering in the political arena for which appeal to electorate is provided for. [p.757]

It was contended that in spite of the fact that Article 58(2) states that “Notwithstanding anything contained in Clause (2) of Article 48”, the President may also dissolve the National Assembly in his discretion under Article 58(2) and when he does exercise his discretion to dissolve the Assembly, the validity thereof cannot be questioned on any ground whatsoever as provided for under Article 48(2). If the argument be correct then the provision “Notwithstanding anything contained in clause (2) of Article 48” would be rendered redundant as if it was no part of the Contitution. It is obvious and patent that no letter or part of a provision of the Constitution can be said to be redundant or non-existent under any principle of construction of Constitution. The argument may be correct in exercise of other discretionary powers but it cannot be employed with reference to the dissolution of National Assembly. Blanket coverage of validity and unquestionability of discretion under Article 48(2) was given up  when  it  was  provided  under  Article  58(2)  that “Notwithstanding clause (2) of Article 48….”, the discretion can be exercised in the given circumstances. Specific provision will govern the situation. Caesar while declining to go to the Senate for reason extraneous to public office when asked by the person directed to communicate his decision the cause thereof, said: “The cause is in my will: – I will not come: That is enough to satisfy the Senate”. He lost his life. Therefore, however, powerful the person or the office of the President may be he has to act like a reasonable person with common prudence and take his steps in life on solid foundations and reasons understandable by common people. Therefore, it is not quite right to contend that since it was in his “discretion”, on the basis of his “opinion” the President could dissolve the National Assembly. He has to have reasons which are justifiable in the eyes of the people and supportable by law in a Court of Justice. The “discretion” and formation of the “opinion”, of course, which are objectives realities. The “discretion” or formation of “opinion”
cannot be based on illusions, fancy or whim. It is understandable that if the President has any justifiable reason to exercise his “discretion” in his “opinion” but does not wish to disclose, he may say so and may be believed or if called upon to explain the reason he may take the Court in confidence without disclosing the reason in public, may be for reason of security of State. After all patriotism is not confined to the office-holder for the time being. He cannot simply say like Caesar it is my will, opinion or discretion. Nor give reasons which have no nexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects. Even if one reasons for the action is invalid. It does in its entirety. [p.759]E
Article 58(2)(b) — Dissolution of National Assembly by the President on the ground that “the objects and purposes for which the National Assembly was elected had not been fulfilled” — Reason given by the President being too wide does not hold water.  [p.760] F&G

Dissolution of National Assembly by the President on the ground that the law and order in the country had been broken downs to an alarming extent resulting in tragic loss of innumerable lives as well as loss of property. — Held, law and order problem was to be tackled under the Constitution by Emergency Power provided under Part X of the Constitution; law and order problem was perennial and dissolution of National Assembly on such as ground was a big dose for a minor disease.[p.760]H

Dissolution of National Assembly by the President on the ground that “the life, property, honour and security of citizens of Pakistan had been rendered totally unsafe and integrity and ideology of Pakistan had been seriously endangered” — Held, ground was patently too wide and generally which could be advanced any time. [p.760]I

Dissolution of National Assembly by the President on the ground that public morality and deteriorated to an unprecedented level — Held, on such a general ground which keeps changing from generation to generation drastic action of dissolving the highest representative legislative body could not be upheld. [p.760]J

Dissolution of National Assembly by the President on four different grounds — Grounds given for dissolution of National Assembly were vague, general or non-existent and could always be passed at any time — Effect — Constitution does not envisage dissolution of Assembly at will — Held, even if one ground was wide, vague, general, non-specific or non-existent, the whole order had to fall and order of dissolution could not be sustained.

The grounds given for dissolution of National Assembly and the Provincial assembly of Punjab were so vague, general or non-existent that the orders were not sustainable in law. Such like orders could always be passed at any time. The Constitution does not envisage dissolution of Assemblies at will. [p.751]NNN

Even if one ground is wide, vague, general, non-specific or on-existent, the whole order has to fall. If a person takes into account, any 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. A perusal of the grounds mentioned for the dissolution of National Assembly by the President would make it quite clear that these can be urged any time for dissolving the National assembly. Such a Draconian discretion is not envisaged by the Constitution which provides for free people. Only on 25th May, 1988, the President had called for the Session of the National Assembly. On 29th May, just four days later, he orders dissolution of the Assembly. What has happened within four days, has not been disclosed. Court cannot fathom the hidden real reason. In these circumstances, it is not possible to sustain the order of dissolution. [p.760]K

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Word “dissolution” — Meaning and import — Dissolution though having been held as not sustainable, High Court, declined the request of petitioners that dissolved Assemblies or the Cabinet be restored. – [Words and phrases]

What is to be done now? Should the dissolved Assemblies with pulsating heart the cabinet be restored as contended by the petitioners? The word ‘dissolution’ means per Chamber’s Twentieth Century Dictionary: “the breaking of an assembly; loosening, melting, break up, death”. What has been done to death nobody on earth can bring it to life. Fatal blow was struck. with no declaration the dead can come to life. Another fact may be taken note of. The Assembly was elected by avoiding political parties from participation in the process of election. All were demanding fresh elections. After the dissolution, everybody accepted the fact of dissolution. No responsible person challenged the action, neither the leader of the House nor its Speaker. The latter’s support of the petitions is too belated. The entire nation is looking forward to the ensuring election, including the leading members of the dissolved Assemblies. Petitioners were asked whether anywhere in the world, dissolved Assemblies have been restored by a Court? They cited no example. We cannot be innovative to frustrate the will of the people who are all geared to go to polls. It would be very unwise, unjudicious exercise of discretion. It will be seen that the struggle of supremacy of principles — parliamentary form of Government and federalism, over personal opinion of individuals — has been unremitting. In the process liberty was lost by the majority of people living in what was East Pakistan. Submission to principles was avoided but at what cost — humiliating defeat and surrender to enemy forces. Principles  are  again,  seeking  acceptance, adoption  and submission. Let no person coose to submerge them to satisfy his will. The Chairman of the Senate, which body has survived the revenges of life, has taken over under the Constitution as Acting President. He is the first person to come to power under a Constitution made not by him or under him but by the people of Pakistan. He has promised that he would go by the Constitution. He will hold election on 16th of November, 1988. He will transfer power to the elected representatives of the people. Here is a chance for the nation to uphold principles and live peacefully with dignity.

“There is a tide in the affairs of men Which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life Is bound in shallows and in miseries. On such a full sea are we now afloat, And we must take the current when it serves, Or loss our venture.”

Sakespeare, Jullus Caesar Act IV –
Scene III

Articles 199 & 58(2)(b) — Dissolution of National Assembly by the President — Invocation of Constitutional jurisdiction of High Court against dissolution of National Assembly — Laches — Effect — Petition raised fundamental questions relating to interpretation and enforcement of the Constitution — Duty of Court, to determine questions arising under the Constitution cannot be declined or abdicated because the judgment may require consequential steps which call for political action or solution.

It may, however, be noticed that his plea not to examine the impugned orders as that would involve determining political questions is not quite sound for the simple reason that the Courts have to interpret and enforce the Constitution. May be the result of the examination would lead to political action but the examination of the question relating to Constitution cannot be refused on the ground that it may lead to consequences requiring
political action.  It  is  the primary  duty  of the  Court to determine questions arising under the Constitution and this function cannot be declined or abdicated because the judgment may require consequential steps which call for political action or solution. Therefore, having examined the questions raised and determining the same, the restoration of the dissolved Assemblies and Cabinets was not allowed without entering into the political arena.

Articles 48 & 58 — Dissolution of National Assembly by the President — Exercise of powers by the President — Immunity — Extent — Whilst immunity from justiciablity is intended to attach to all action of the President, which he may take in his discretion. If so empowered by the Constitution, the particular action which he may take in his discretion, as stated in Article 58(2), is not immune from justiciability.

Under clause (1) of Article 48, the President, in the exercise of his functions, has to mandatorily act in accordance with the advice of the Cabinet, or of the Prime Minister. By virtue of clause (2). This Article, notwithstanding the fact that the President has to mandatorily act in accordance with the advice of the Cabinet or the Prime Minister, the President can also mandatorily act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, in which case the validity of anything done by the President in his discretion cannot be called in question on any grounds whatsoever. Thus, in respect of functions which the President can exercise under clause (1), immunity from questioning the validity of the action is not provided. Where he acts under clause (2) of Article 58(2)(b), notwithstanding anything contained in clause (2) of article 48, the President can also dissolve the National assembly in his discretion, where, in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. The question that arises is: What do the words “notwithstanding anything contained in clause (2) of Article 48” mean? Do they take away the immunity provided in clause (2) of article 48, or they only clarify by way of abundant caution that the power is within the general category to the immunity.  It is true that a non obstrante clause can create an exception, where there is a conflict between two provisions, or it may be clarifying of the original position and introduced only by way of abundant caution. Clause (2) of Article 48 does not delineate any specific power, but refers to a general category of powers designated as discretionary, where the President acts in respect of any matter in respect of which he is empowered by the Constitution to do so. In respect of such discretionary powers, immunity from questioning their validity is provided. If the power given to the President under sub-clause (b) of the clause (2) of Article 58 was intended to be within the general category provided by clause (2) of Article 48, there was no necessity to prefix the non obstante clause with sub-clause. By adding the non obstante clause, it cannot be said that the object of the legislature was to clarify the general category and that the addition was only by way of abundant caution, so as not to limit the scope of the general category. This reasoning would apply if the two provisions relate to two specific powers. Since clause (2) of article 48 only illustrates a general category and clause (2) of Article 58 refers to a specific power, the non obstante clause was obviously intended to create an exception to the immunity provided in clause (2) of Article 48. This is also obvious from the proceedings of the Debate held in the National Assembly on 16th October, 1985, in respect of the Constitution, (8th Amendment) Bill. [p. 772]

The reference from the speech of the then Prime Minister, in the National Assembly, therefore, is clear that the power under clause (2) of Article 58 was not intended to fall within the category of clause (2) of Article 48, but rather was to be treated as exclusive of that power, in short, what was sought by  the then Prime Minister in the National Assembly was the freedom from immunity, as provided by clause (2) of article 48. Thus shorn of all complexities, clause (2) of Article 58 means that notwithstanding the general power of the President, as contained in clause (2) of Article 48, to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, which act is immune from judiciability, he can also dissolve the National Assembly in his discretion under this clause, for reasons given in sub-clause (a) and (b) thereof, and since no immunity as in clause (2) of Article 48 is provided, in this case no immunity shall apply. Comparing both the provisions, it is obvious that whilst immunity from justiciablity is intended to attach to all actions of the President, which he may take in his discretion, if so empowered by the Constitution, the particular action which he may take in his discretion, as stated in clause (2) of Article 58 of the Constitution, is not immune from justiciability. This is the effect f the non obstante clause contained in clause (2) of Article 58. It appears that when the Majlis-e-Shoora (Parliament) granted the President power under the Constitution to dissolve the National Assembly in his discretion, it made sure that the President’s action would be justiciable.  This  is  the  effect  of  the  opening  words “notwithstanding anything contained in clause (2) of Article 48”  pre-fixed to clause (2). But for these words, immunity from justiciability would have attached to the President’s action under clause (2) of Article 58. [p.772]

Article 48(2) — Exercise of powers by the President under Article 48(2) — Immunity from judicial scrutiny is not available in respect of actions under Article 48(2). [p.774]Y

Article 58(2)(b) — Dissolution of National Assembly by the President — Justiciability of action — Opinion of the President under Article 58(2)(b) is a condition precedent to the exercise of discretion — If it can be shown that there were grounds, having a nexus with the Constitutional requirements, however, slim or flimsy they may be, the Court would not interfere — When it can be shown that there was no material, or extraneous material on the basis of which the opinion was reached, the exercise of the power by the President would be unconstitutional.

The next question whether the immunity from challenging the validity of the action provided under clause (2) of Article 48 is immunity inter se the President, on the one hand, and the Cabinet, or the Prime Minister, on the other, or immunity from the action being called in question in a Court. Where immunity from legal action is provided, it is explicity mentioned that the validity of the action will not be called in question in any Court. Thus, immunity from judicial scrutiny of Courts is thus not available in respect of actions under clause (2) of Article 48.

Certain facts and circumstances have to be present before an opinion can be framed by the President. Since the satisfaction of the President under Article 58(2)(b) of the Constitution is subjective and cannot be tested by reference to any objective tests, it may lead to the interference that the opinion perhaps cannot be challenged, but there is no dispute to the general rule that facts and circumstances on which the opinion has to be formed can be subjects to judicial scrutiny. [p.774]Z

Just because the question is of a political nature, the Court cannot hold its hands off, but it can go into the question whether the person or authority under the Constitution that has the power to form the opinion has acted within the limits of its power or exceeded it. [p.774]AA

The rule that political question, as far as possible, should not be decided by Courts, has primarily sprung up from decisions of Courts taken in respect of cases under Article 234 of the Constitution, where the action of the President is subject to the ratification of Parliament, and where it is generally felt proper to leave the decision of such questions for the decision of Parliament, or where election has been ordered, to the will of  the people. even otherwise, this rule is losing ground, due to the reason that Constitutional mechanism in a democratic polity does not contemplate existence of any function which qua the citizens may be designated as political, so that orders made in exercise thereof cannot be tested for their validity before the Courts. [p.774]BB

Where a political question is tied up with the question of constitutional rights or obligations, the Court must look into it. If it is not so tied up, the Court may abstain from enquiring into it. [p.7725]CC

Article 58(2)(b) — Exercise of powers by the President to dissolve the National assembly — Legal requirements.

Sub-clause (b) of clause (2) of Article 58 of the Constitution of Pakistan, 1973 clearly shows that before the President can exercise his discretion to dissolve the National Assembly, he must first form 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 that appeal to the electorate is necessary. It is obvious that before any such opinion can be formed, circumstances should be present which show that a situation has arisen in which the Government of the Federation cannot be carried out in accordance with the provisions of the Constitution and that it is also necessary and desirable that the country should go to the polls, because an appeal to the electorate is necessary. The legal requirements, therefore, appear to be: First, that certain facts and circumstances raising a political issue concerning the future existence of the life of the National Assembly have arisen; Second, that such facts and circumstances are so apparent, visibly verifiable or manifest that on the principle of res ipsa loquitur they can be accepted, or that they are known to the President through verifiable sources’s or that some summary or report or written information prepared for or at the instance of the President has been submitted to or seen by him, which discloses the same; Third, that in the opinion of the President honestly formed as to the existence of such facts, they in the fair judgment, disclose 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 that it is also necessary that an appeal to the electorate is necessary and the whole of the nation must be plunged into election fever and the country must be burdened with the huge expense of going to the polls; and Fourth and last, that in the discretion of the
President, it is necessary to dissolve the National Assembly. [p.776]GG

Article 58(2)(b) — Dissolution of National Assembly by the President — Situation in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution.

The main question that arises in this case is when can it be said that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the  Constitution.   The expression  “Government  of  the Federation” is not limited to any one particular function, such as the executive, the legislative, or the judicial, but includes the whole functioning of the Federal Government in all its ramifications. It cannot be forgotten that sub-clauses (a) and (b) of clause (2) are juxtaposed together and, therefore, sub-clause (b) has to be read in harmony with the intention behind sub-clause (a), in short, whether a political issue has arisen demanding the ascertainment of the will of the people as regards the continuance of the National Assignably. Thus, where the National assembly is beset with internal dissensions and problems and the party allegedly in power does not have a clear majority, or having tenuopus support from its members, is not able to carry on the functions of the Government with confidence, and is avoiding to take important decisions, which require to be taken, for fear that it may be outvoted, in case a debate is held in respect thereof, a situation can be stated to have arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. A few further instances can also be given, such as, where the Government has been defeated in the Assembly and the Prime Minister does not want to step down, or political groupings are such that even attempts by the President to form a coalition Government and get a working majority have not been successful and as alternative Government can be formed. It is difficult to conceive of a case where a major party having a stable Ministry in the saddle can be stated to have lost its functional ability, but in a rare case where the national mood has changed, it may be so figuratively treated, such as where a quick shift in the national mood placed party in power at the Centre and the Provincial assemblies which had stable Governments controlled by the ruling party, were dissolved to give the people in the said Provinces a further right to express their current feelings due to the recent shift in their mood. What is intended by the language of sub-clause (b) of clause (2) is the failure of the functional working of the National Assembly, through Ministers belonging to the majority party, because they are not able to run the Government with confidence and courage. Nothing can be read into clause (b) to show that the failure on the part of the party in power in the National assembly to effectively carry out the directions or recommendations of the President, or any particular policy or programme promised by them in their manifesto, or to satisfactorily enforce some of the provisions of the Objectives Resolution or Principles of Policy, can be taken into consideration for the dissolution of the National Assembly, for these are abstract matters on which no honest judgment can be formed and otherwise too they would be dependent on facts which are relatively variable and which have no nexus with the functional working of the Assembly. What is covered by sub-clause (b) is the functional working of the party in power, for where it has strength, it effectively controls legislative and executive functions, and where it is weak, it cannot effectively do so. The primary condition, therefore, is whether the circumstances are such that the functional working of the National Assembly is impaired; for if the party in power commands the widest support in the National Assembly. It has the right to run the Government, and where it has no such support, or has lost sit, it must leave, whatever supportive conditions are there, by themselves they have no value, unless they serve the primary condition. [p.777]HH

Article 58(2)(b) — Dissolution of National Assembly by the President — Circumstances prevalent on the date of dissolution and question of a political issue of a nature facing the country threatening the life of the National assembly judicially examined — Held, primary basis on which the National assembly could have been dissolved was non-existent.

The most important question that arises in the present case is what were the circumstances prevalent on or before 28th May, 1988, when the National Assembly was dissolved, was the a political issue of a nature facing the country threatening the life of the National Assembly. It cannot be forgotten that the members of the National Assembly represent four provinces, the Federally Administered Tribal Areas and the Federal Capital, on the basis of population, and some seats reserved for the minority communities and women. The Pakistan Muslim League party, after it decided to run its affairs on a party-based system, had the support of an overwhelming majority of the members of the House. The party was not beset with internal dissensions sour friction. Council of Ministers that had been installed had not suffered any major change. The popular character of the party had not been disturbed nor compromised. On the contrary, it had won the bye-election held in 1987, which showed the mood of the electorate in the Punjab, at least in having faith in the Pakistan Muslim League. The President himself in his addresses to the National Assembly on 19th April, 1985, and 7th April, 1988, waxed eloquent about the purpose of the National Assembly amend the fact that it was running the Government in accordance with the Constitution. The President, in exercise of his powers under Article 54 of the Constitution, had also on 25th May, 1988, summoned a session of the National Assembly for 8th June, 1988. The President would not have summoned the session, if the party was in the midst of any turmoil the life of the National Assembly, one would expect many things to have happened, such as the Ministry in power has lost its majority amongst the members, or internal dissensions and divisions have raised their ugly head or prolific companying has begun among members for support to form a majority party, etc. Such matters do not remain hidden. They are so apparent that they find full expression themselves in a thousand ways. Nothing of the sort was present, either manifest or unmanifest. The political scene was stable and placid like a frozen lake, with not a ripple of disturbance on its surface, all these are facts which the Court can take judicial notice. It was held that the primary basis on which the National Assembly could have been dissolved, was not there. [p.781]II

Article 58(2)(b) — “Basic structure” theory — Scope of Article 58(2)(b) cannot be enlarged by any ratio of rule similar to the “Basic structure” theory, said theory having not been accepted by superior Courts of Pakistan. Thus the scope of sub-section (b) of clause (2) of Article 58 cannot be enlarged by any ratio or rule similar to the “basic structure” theory, as pronounced in India. Even otherwise, this theory has not been accepted by the Supreme Court or Pakistan in Fauji Foundation’s Case – PLD 1983 SC 457.

The arguments of the learned Attorney-General on behalf of the Federation invoking this theory to expand the horizons of sub-clause (b) of clause (2) of Article 58 cannot be accepted. Rather, the horizons of this sub-clause can only be limited by the Parliamentary  practice  prevailing  governing  dissolution of assemblies, if not by the limitation of the object for which it was made available to the President.

Article 58(2)(b) — Dissolution of National Assembly by the President — Order to be passed with extreme caution by the President — Grounds for dissolving National Assembly being vague, based on extraneous grounds and having no basis in law must be treated as not furnishing any reasonable grounds on which the President could have formed an honest opinion, as required by the Constitution — Dissolution order being ultra virus and unconstitutional was void and unsustainable and must be struck down.

The National Assembly was dissolved for the gounds given in the President’s dissolution order itself, which states the reasonss as follows:-

(i)    That the objectives and purposes for which the National Assembly was elected had not been fulfilled;

(ii)   that the law and order situation in the country had broken down to an alarming extent, resulting in tragic loss of valuable lives as well as loss of property;

(iii)  that the life, property, honour and security of the citizens of Pakistan had been rendred totally unsafe and integrity and ideology of Pakistan had been serioursly endangered; and

(iv)   that public morality and deteriorated to an unprecendented level;

As a result whereof, in the opinion of the President, a situation had arisen in which the Government of the Federation could sot be carried on in accordance with provisions of the Constitution and an appeal to the electorate was necessary. [p.782]KK

All the four grounds stated in the dissolution order have no nexus with the political question covered by sub-clause (b) of clause (2) of article 58, namely, whether a situation has been whereby the functional working of the National Assembly had become impaired and ascertainment of the will of the people has become necessary. No further grounds have been stated. The
dissolution order, therefore, is based on extraneous grounds and having no bais in law, must be treated as not furnishing any reasonable grounds on which the President could have formed an honest opinion, as required by the Constitution. This being so, he could also not have exercised his just discretion in the matter. A dissolution order under sub-clause (b) of clause (2) of the Article 58 requires to be passed with extreme caution, where the President, acting as a neutral and being moderator, reasonably believes, from unchallenged facts within his purview, that the functional working of the National Assembly is impaired and ascertainment of the will of the people has become necessary.  The dissolution order appears to have been passed in gross and disrespect or the mandatory provisions of the Constitution. The dissolution order being ultra virus and unconstitutional, is void and unsustainable and must be struck down. [p.783]LL

Articles 58(2)(b) & 199 — Dissolution of National Assembly and four Provincial Assemblies declared as ultra vires and unconstitutional — Factors preventing Court from grant of relief detailed.

Articles 58(2)(b) & 48(2) — Order of dissolution of National Assembly by the President — Immunity — Extent — Discretion of President is circumscribed by the object of the law that created it — Condition precedent for exercise of discretionary powers in pursuance of Article 58(2)(b) — Power of President to form an opinion under Article 58(2)(b) is not unfettered and discretion vested in him is not absolute.

Under sub-Article (2) of Article 48 the discretionary power exercised by the President in any matter, he is permitted by the Constitution, to do so, is immune from challenge on any ground whatever. But this immunity cannot be stretched to action taken by him under Article 58(2)(b) and there are weighty reasons for it. Sub-Article (2) of ARticle 58 is prefixed with the expression “Notwithstanding anything contained in clause (2) of Article 48”, which gives Article 58(2)(b) an overriding effect over the provisions mentioned in the non obstante clause. Ordinarily the purpose of employing such a non obstante clause is that the provision embodied therein shall not be an obstacle to the full operation of the provision following it. It is, however, noticeable that both Articless 48(2) and 58(2) more or less operate in the same field and both begin with the non obstante clause. In such like cases it becomes the kduty of the Court, in so far as possible, to construe the two conflicting provisions in a manner that they harmonise, there are two tests for resolution of such a conflict. The inconsistency may be resolved on consideration of the purpose underlying the enactments and the object of appending non obstante clause thereto. The other rule usually applied is that the later enactment cuts down the ambit of and prevails over earlier one. The extension of the later test to the case in hand would irresistibly lead to a conclusion thast Article 48(2) does not control Article 58(2) as both cannot co-exist. For ascertaining the object of incorporation of non obstante clause in Article 58(2) a reference to the language of this clause as sit existed before its amendment by the Constitution (Eighth Amendment) Act, 1985 appears to be inapt. This clause when initially inducted into the Constitution under the revival of the Constitution Order, 1973, runs as under:

“The President may also dissolve the National Assembly when, in his opinion an appeal to the electorate is necessary”.

It is discernible from the extract of the debate of the National Assembly, that an ineradicable fear of the exercise of an absolute dominance by the President as to the dissolution of Assembly loomed large in the minds of the members. In this behalf the Independent Parliamentary group placed before the House a proposal for amendment of ARticle 58(2).[p.788]PP

A speech made in the course of passing of an enactment does not carry much weight as an extrinsic aid to the interpretation thereof as it does not reflect the inarticulate mental processes behind the majority vote which carried the Bill. But the speech by the Prime Minister in the House was seemingly made by the Prime Minister as a result of some agreement between the party in power and the opposite group and sheds light on the reasons for the change in the language of Article 58(2). [p.789]QQ

There is no legal bar to make reference to the speech of the Prime Minister which unequivocally shows that non obsdtante clause was added to Article 58(2) with the sole object of excluding the application of ARticle 48(2) granting immunity to exercise of discretionary powers by the President, there is thus, no merit in the objection to the reviewability of the impugned orders on the plane of Article 48(2). [p.789]RR

The power to dissolve the National Assembly is explicitly recognised in the Constitution. To dissolve the sovereign elected body like the National Assembly is the highest power, vesting in an individual, particularly when sit is to be exercised at his discretion. But the discretion vesting in the President is not absolute; it is qualified one. The discretion vesting in a public authority is always circumscribed by the object of the law that creates it. [p.790]SS

There are conditions precedent for exercise of the discretionary powers in pursuance of ARticle 58(2)(b). In the first instance the President has to formulate an opinion as to whether or not (i) the Government of the Federation cannot be carried on, in accordance with the provisions of the Constitution, (ii) and an appeal to the electorate is necessary. Needless to state that both the conditions must co-exist. The law-maker has used expressions i.e., “discretion” and “opinion” in the same clause and that is not without any object. When in relation to the same subject-matter two different words are included in the same Statute, there is a presumption that they are not used to carry the same sense. The word “opinion” conceiveably has been inducted to delimit the scope of the discretionary powers. 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. some immunity envisaged by Article 48(2) is available to the action under Article 58(2) that can possibly be only in relation to “discretion” and the “opinion”. A constitutional obligation is cast on the President, that before exercising his discretion he has to form his “opinion”. [p.790]UU

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Grounds — Where grounds are disclosed, their validity can well be examined through judicial intervention — When grounds are vague, unintelligible and not germane to Article 58(2)(b), and also suffer from malice in law, order of dissolution deserves to be struck down. [p.792]XX

GHULAM MUSTAFA KHAR V. PAKISTAN PLD 1988 LAHORE 49. Ref.

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Discretion of President — Power of judicial review by the Courts.

The dissolution order pased in exercise of power under Article 58(2)(b) is not open to scrutiny before any representative body such as Senate. This would furnish another ground for judicial review of the unconstitutional orders of the President. [p.793]ZZ

The ouster of jurisdiction of Courts cannot readily be inferred because the provision seeking to oust their jurisdiction even by a constitutional provision is to be construed strictly with pronounced leaning against ouster. [p.793]AAA

FEDERATION OF PAKISTAN V. SAEED AHMAD KHAN PLD 1974 SC 151. Ref.

Article 58(2)(b) — Dissolution of National Assembly by the President — Judicial review — Whre some functionary acts against the provisions of the Constitution, within the limits of jurisdiction conferred on him under the Constitution. Courts may inevitable have to step in — Situation may arise that no relief other than the judicial relief may be avaiable to the petitioner.

The Judges have to interpret law, without being motivated by political considerations. But, the Constitution being supreme, all organs of the State owe their existence and derive their authority from it. Where some functionary acts against the provisions of the Constitution.  Constitution, the Courts may inevitably have to stepin. A situation may arise that no relief other than the judicial relief may be available to the peoples. The Judges do not decide cases in vacuum and at times their determinations may imperceptibly be shadowed by political atmosphere with which the country is charged. But in some political situations a judicial duty to rule upon the legal merits of the case may have to be accepted as an inescapable obligation or as the least of evils.

Despite the unsustainability of the orders of the President and the Governor, no relief by way of restoration of Assemblies can be granted. [p.793]BBB

Article 199 — Laches — Few weeks delay, in cases involving Fundamental Constitutional issues, is hardly of any significance. [p.793]CCC

Articles 48(5)(b), 58(2)(b) & 91(8) — Dissolution of National Assembly by the President — Care-taker Government, envisaged in Article 48(5)(b), has to be headed by the Prime Minister — Amendment in the prescribed Oath of Ministers of Caretaker Government, or adaptation thereof so as to substitute “President” for Prime Minister is not permissible unless the Constitution is amended in accordance with the procedure prescribed in Part XI of the Constitution.

Article 58(2)(b) — Dissolution of National Assemblly by the President — power of President in regard to dissolution of National Assembly is hedged in with limitation.

Whereas, the Prime Minister has a final say in the matter of dissolution of the National Assembly the President is also given the power to dissolve it subject to the all important formation of an opinion showing that a situation had arisen wherein the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate for fresh poll was necessary. Power of the President in regard to dissolution of National Assembly is hedged in with limitations. [p.797]HHH

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Actiion of President dissolving National Assembly is justiciable and can be examined whether the stated grounds had nexus with the specified situation in Article 58(2)(b).

Articles 48(5), 58(2)(b) & 91 — Dissolution of National Assembly by the President — Appointment of Caretaker Cabinet — Term “Caretaker Cabinet” — Definition — To make the Caretaker Cabinet complete, fresh appointment of Prime Minister is necessary — Function of Caretaker Cabinet — Limitations. [words and phrases] [p.799]JJJ&KKK

MADAN MURARI VERMA V. CHAUDHRY CHARAN SINGH & ANOTHER AIR 1980 CALCUTTA 95;  SIR IVOR JENNINGS-CABINET GOVERNMENT, THIRD EDITION P.85. Ref.

Article 199 — Constitutional jurisdiction — Laches — Question relating to coinstitutionality of actions — Grounds of laches cannot prevail — [Laches]

On question relating to the constitutiionality of actions the grounds of laches cannot prevail, for there cana be no estoppel against the Constitution and an act which is unconstitutional cannot become constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act. [p.801]LLL

FAZLUL KADER CHOWDHRY & OTHERS V. MUHAMMAD ABDUL HAQUE PLD 1963 SC 686. Ref.

Articles 58(2)(b), 112 & 199 — Dissolution of National Assembly by the President and Provincial Assembly by the Governor on the stated grounds not sustainable — Prime Minister in the Caretaker Cabinet is essential component — Consequent upon dissolution of the Assemblies, process set in motion in accordance with the provisions of the Constitution and steps taken thereto not to be interrupted and interfered with — Relief for restoration/reinstatement of dissolved Assemblies could not be made despite unsustainability of the order dissolving the Assemblies and interference was declined and no direction was issued by the Court under Article 199 of the Constitution of Pakistan.[p.801]MMM

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