h1

P L D 1989 SC 75

REFERENCE NO. 1 OF 1988 MADE BY THE PRESIDENT OF PAKISTAN

V/S

UNDER ARTICLE 186 OF THE CONSTITUTION OF PAKISTAN

Constitution of Pakistan (1973), Articles 86, 82 & 128:Articles 86, 89, 83(3), 82(2) & 128 — Financial procedure — Powers of Federal Government.

Article 86 empowers Federal Government in a given situation to authorise expenditure from Federal Consolidated Fund for a period not exceeding four months. This is a Constitutional entrustment of legislative function on terms to the Federal Government and this is an exception to what is provided in Article 83(3). The capacity of the Federal Government while exercising this power is distinct in the Constitutional framework from the Ordinance making power of the President (Article 89). As rgards the object of the two powers, the distinction should be equally clear. As long as power under Article 86 is available, the precondition required for exercise of power under Article 89 will not and cannot arise. It is only when that reserve power under Article 86 gets exhausted that the exceptional reserve recognised in Article 89 comes into existence. Such reserve and exceptional powers have been considered consistent with free Government only when their control is lodged eles where than in the executive who exercises them. Such a power has been likened to a safety valve to meet extraordinary situations and designed to save and not to destroy democracy. Such provisions remedy the rigidity of a Federal Constitution and make it flexible to an extent to be capable of meeting the challenges not totally outside the ken of the framers of the Constitution. However, it should be clear that by its very nature in the cointext of the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)(a). [p. 107]X

Article 86 of the Constitution (which is in peri meteris with Article 126) provides as follows:

“86. Power to authorize expenditure when Assembly stands dissolved. —

Notwithstanding anything contained in the foregoing provisions relating to financial matters, at any time when the National Assembly stands dissolved, the Federal Government may authorize expenditure from the Federal Consolidated Funds in respect of the estimated expenditure for a period not exceeding four months in any financial year, pending completion of the procedure prescribed in Article 82 for the voting of grants and the authentication of the schedule of authorised expenditure in accordance with the provisions of Article 83 in relation to expenditures.”

The submission of the learned Attorney-General that within the framework of the Constitution it is possible for the President and the Governors to authorize the expenditure after 31.10.1988 by promulgating appropriate Ordinances is untenable.  The Constitution expressly provides for a situation where National or Provincial Assembly stands dissolved, namely Article 86 and 126. According to these provisions, the Federal and the Provincial Governments are authorised to incur expenditure from the Consolidated Funds for a period not exceeding four months in a financial year. Therefore, in view of the aforesaid express prohibition neither the Federal nor the Provincial Legislature can achieve through the Ordinance what is otherwise prohibited by the express terms of the Constitution. It is well-established that
where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performances are necessarily forbidden. This principle would apply with greater force when a Constitutional provision has provided for a method of performance and prescribed a limitation of time for the doing of a thing. This would imply that any contrivance which would amount to circumventing the Constitutional provision is necessarily prohibited.

Since mention has been made in this Article to the procedure prescribed in Article 82 (corresponding to article 122) and the provisions of Article 83 (corresponding to Article 123) these Articles may also be usefully reproduced as under:

“82. Procedure relating to Annual Budget Statement. — (1) So much of the Annual Budget Statement as relates to expenditure charged upon the Federal Consolidated Fund may be discussed in, but shall not be submitted to the vote of the National Assembly.

(2) So much of the Annual Budget Statement as relates to other expenditure shall be submitted to the National Assembly in the form of demands for grants, and the Assembly shall have power to assent to, or to refuse to assent to, any demand or to assent to any demand subject to a reduction of the
amount specified therein:

Provided that, for a period of ten years from the commencing day or the holding of the second general election to the National Assembly, whichever occurs later, a demand shall be deemed to have been assented to without any reduction of the amount specified therein, unless, by the votes of a majority
of the total a membership of the Assembly, it is refused or assented to subject to a reduction of the amount specified therein.

(3) No demand for a grant shall be made except on the recommendation of the Federal Government.

83. Authentication of schedule of authorised expenditures . –(1) The Prime Minister shall authenticate by his signature a schedule specifying —

(a) the grants made or deemed to have been made by the National Assembly under Article 82, and

(b) the several sums required to meet the expenditure charged upon the Federal Consolidated fund but not exceeding in the case of any sum, the sum shown in the statement previously laid before the national Assembly.

(2) The schedule so authenticated shall be laid before the National Assembly, but shall not be open to discussion or vote thereon.

(3) Subject to the Constitution, n expenditure from the Federal Consolidated Fund shall be deemed to be duly authorized unless it is specified in the schedule so authenticated and such schedule is laid before the National Assembly as required by clause (2).”

So far ass Article 86 is concerned another provision to be noted is Article 82(3) which provides:-

“No demand for a grant shall be made except on the recommendation of the Federal Government”.

Article 86, thereafter empowers Federal Government in a given  situation to authorise expenditure from Federal Consolidated Fund for a period and exceeding four months. This is a Constitutional instrument of legislative function on terms to the Federal Government and this is an exception to what is provided in Article 83(3). The capacity of the Federal Government while exercising this power is distinct in the Constitutional framework from the Ordinance making power of the President (Article 89). As regards the object of the two powers, the distinction should be equally clear. As long as power under Article 86 is available, the precondition required for exercise of power under Article 89 will not and cannot arise. It is only when that reserve power under Article 86 gets exhausted that the exceptional reserver power recognized in Article 89 comes into existence. Such reserve and exceptional powers have been considered consistent with free Government only when their control is lodged elsewhere than in the executive who exercises them. Such a power has been likened to a safety valve to meet extraordinary situations and designed to save and not to destroy democracy. Such provisions remedy the rigidity of a Federal Constitution and make it flexible to an extent to be capable of meeting the challenges not totally outside the ken of the framers of the Constitution. However, it should be clear that by the very nature in the context of the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 129(2)(a).

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