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P L D 1989 SC 166

FEDERATION OF PAKISTAN

V/S

MUHAMMAD SAIFULLAH KHAN


Constitution of Pakistan (1973), Articles 91 & 92:Articles 91(1) & (92(2)
read with Article 58(5) — dissolution of National Assembly by the President — Appointment of care-taker Cabinet — Office of the Prime Minister is necessary at all times for running the affairs of the country and that he should have been appointed to head a Care-taker Cabinet. [pp. 191, 192] M & N

Article 92(2) — third Schedule read with Articles 238 & 239 — Substitution of words “Prime Minister” by the word “President” in the oaths subscribed by the members of the Care-taker Cabinet was not possible without amendemnt of the Constitution in accordance with the procedure prescribed in articles 238 & 239 of the Constitution. [p. 192] S

P R E A M B L E —

Instances of exclkusion of jurisdiciton of Court in the Constitution of Pakistan detailed.

All Constitutional questions turn on whether kpower has been exceeded or abused, the judicial process is eminently suited to the ascertainemnt of relevant facts and the application of the law, or the Constitution to the facts so ascertained. The jurisdiction of the Court may be excluded by the Constitution itself and the following are the instances of such exclusions in
Constitution of Pakistan :-

(i) “The validity of the election of the President shall not be called in question by or before any Court or other authority.” [Article 41(6)]

(ii) “Notwithstanding anything contained in clause (i), 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.” [Article 48(2)]

(iii) “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.’ [Article 48(4)]

(iv) “(1) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground or any irregularity of procedure.

(2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any Court in respect of the exercise by him of of those powers.” [Article 69(1) & (3)]

(v) “The validity of any Proclamation issued or Order made under this Part shall not be called in question in any Court.” [Article 236(2)]

(vi) “All proclamations……….are hereby declared to have been validly made by competent authority and shall not be called to question to any Court on any ground  whatsoever.” [Article 269(1)]

“All orders made…………be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever” [Article 269(2)]

(vii) “Notwithstanding a judgment of any Court, a law made by Majlis-e-Shoora (Parliament) under clause (1) shall not be questioned in any Court on any ground, whatsoever.” [Article 270(2)]

“Notwithstanding the provisions of clause (1), and a  judgment of any Court to the contrary, for a period of two years from the commencing day, the validity of all such instruments as are referred to in clause (1) shall not be called in question before any Court on any ground whatsoever.” [Article 270(3)] “All orders made…………shall not be called in question before any Court on any ground whatsoever.” [Article 270A(4)]

(viii) “The Proclamation………shall not be called in question in any Court on any ground whatsoever.” [Article 270A(1)] “All Orders made………..shall not be called in question in any Court on any ground whatsoever.” [Article 270A(2)]

(ix) “The Proclamation of Emergency……….shall not be called in question in any Court on the ground of inconsistency with any of the rights conferred by Chapter I of Part II”. [Article 280] (pp. 195, 211) V

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