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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 126 & 58:INTERPRETATION — Where the provisions of a Statute or
Constitution relate to the performance of a public duty and where
the invalidation of acts done in neglect of them would work
serious general inconvenience or injustice to persons who have no
control over those entrusted with the duty, without promoting
the essential aims and objects of the maker thereof such
prescription are generally understood as directory only —
Neglect of them may be penal but it does not affect validity of
the act done in disregard of them. [p.102]S

Article 126 —

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 Assemblies stands dissolved, namely
Articles 86 and 126. According to these provisions, the Federal
and the Provincial Governments are authorised to incur
expenditure from the Consolidated Funds for a peeriod not
exceeding four months in 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 givne to do a certain
hing 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.

Article 58 —

It is realised and acknwoeldged that ordinarily the act of
the Dissolution of the National Assembly, as herein particularly
under Article 58(2)(b), does not carry with it the zeal,
pleasantness or even sense of duty for advancing the purposes of
the Constitution. It essentially is an act of “necessity”. And if
for this good reason, the President has refrained from acting
under Article 58(2)(b), notwithstanding the existence of grounds,
as suggested by Sh. Shakat Ali. I would not examine the aspect of
the matter, any further.

A subsidiary question arising from the aforediscussed two
proposals regarding formal dissolution of the National Assembly
under Article 58(1) or 58(2)(b), after the order dated 5.10.1988
needs also to be dealt with. It is that the dissolution which
came into effect on 5.10.1988, (as an effect of the order of the
Supreme Court notwithstanding the earlier de fact (dissolution)
might have rendered it impossible to dissolve the National
Assembly again under Article 58(1) or 58(2)(b). This might only
be a seeming difficulty in the proposals; but, it would not have
presented real difficulty, in case a national consensus was
sought to be put into legal effect. The Supreme Court could not
have been able to give effect to it in this Reference; because
under Article 186 of the Constitution, it has to be answered in
accordance with the opinion of the Court regarding the
interpretation of law and the Constitutioin. It cannot in this
jurisdiction decide the matter as a lis between the parties;
wherein exercise of other powers is available to the Court
including discretionary and taking other coinsequential actions.
The way-out then would hasve been a cointemportaneous review of
our previous order dated 5.10.1988; regarding which the learned
Attorney-General clearly declined to make any application;
because according to him, it might re-open settled matters. He
was right. In the detailed judgment giving reasons jfor the order
dated 5.10.1988, those grounds will be discussed which prvailed
the Court not to restore or reinstate the National Assembly. Only
a very brief mention of two major elements in this behalf, would
not be out of place. Firstly, it was the acceptance by al
coincerned of the need for an appeal to the Electorate. Secondly
by restoring the National Assembly there was possibilsity of two
parallel executive coming into existence. It would have raised
further constitutional complications. These realisations
undoubtedly are such that they would be relevant even under
Article 58(2)(b). In other words, though on 29.5.1988 the grounds
for Dissolution of the National Assembly, as held by the Court,
did not exist, on the date the Court passed the order dated
5.10.1988 the conditions had changed. Court passed the order
dated 5.10.1988 the conditions had changed. The decision of the
Supreme Court is in accord with the ethos and the spirit of the
Constitution (Its Khameer and Zameer) and it has been so
received.

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