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 186, 70-89, 115:

Articles 186, 70-89, 115, 128, 234, 254, 48, 51, 222(2) & 224(2) — Federal and Provincial Governments can authorise incurring of expenditure out of the Federal and Provincial Consolidated Funds upto one month after the declaration of result of the General Election.

The President of Pakistan referred following question of law of public importance to the Supreme court for consideration and opinion under Article 186 of the Constitution:

“In view of the aforementioned circumstances what measures may be adopted to enable the Federal andd Provincial Governments to authorise incurring of expenditure out of

the Federal and Provincial Consolidasted Funds mentioned above in the absence of National and Provincial Assemblies after 31.10.1989 till the respective Budgets are passed by the new National and Provincial Assemblies to be elected in the ensuing general election as aforesaid”

The circumstances of which specific mention has been made necessitating such a reference are the dissolution of the National Assembly on 29th of May, 1988 under Article 58(2)(b) of the Constitution and that of the Provincial Assemblies of the four Provinces under Article 112 (2)(b) of the Constitution on the 30-th of May, 1988, and 29th of May, 1988 (in the case of Baluchistan Provincial Assembly) the short order of Supreme Court dated 5.10.1988 – Federation of Pakistan v. Haji Saifullah Khan 1988 SCMR 1986 – holding that the dissolution of the Assemblies are constitutionally untenable but not restoring those Assemblies in view of the Elections scheduled to be held for the National Assembly on 16.11.1988 and for the Provincial Assemblies on 19.11.1988; the total involvment of the people of Pakistan, all the political parties, the Election Commission of Pakistan, and all other concerned authorities/agencies sof the Federal and Provincial Governments in preparation for the Elections to be held on 16.11.1988; the Constitutional mandate in Articles 86 and 126 empowering the Federal Government and the Provincial Governments to incur expenditure from the Federal Consolidated Fund and the Provincial Consolidated Fund in respect of the estimated year when the Assemblies stand dissolved, pending completion of the procedure prescribed in Articles 82 and 83 in respet of the expenditure by the Federal Government and Articles 122 and 123 in respect of the Provincial Governments; the period of four months in this financial year commencing from 1.7.1988 is due to expire on 31.10.1988; even after the elections have been held some time will be required to make the National and Provincial Assemblies functional for the purposes of authorising the expenditure and in the interregnu, the Federal as well as the Provincial Governments are oblige to incur the expenditure mentioned in Articles 81 and 82 as well as Articles 121 and 122 for running the affairs of the State, and the Federal Government and Provincial Governments are also obliged to repay the loans to the local and foreign creditors from time to time after 31.10.1988. The said expenditure is unavoidable and is on account of State necessity. Even the conduct of the general election to be held on 16.11.1988 and 19.11.1988 as enjoined by the Supreme Court, will necessitate the incurring of expenditure from the Consolidated Fund after 31.10.1988; expenditure from the Consolidated Fund will also have to be incurred, for rehabilitation of flood-affectees and restoration of flood-affected areas, for augmenting and strengthening the law enforcing agencies, and for maintaining law and order in the couantry. In case such expenditure is not authorised after 31.10.1988 the functioning of the Federal and Provincial Governments as mentioned above, the financial and economic activities as well as the administrative, judicial and security functions of the State will be seriously jeopardies. The Attorney-General explained the Constitutional provisions which necessitated this Reference under Article 186 referring to the Legislative Procedure contained in Articles 70 & 77 and Financial Procedure contained in Articles 78 to 88 (the comparable provisions for provinces being Articles 115 to 117 and Articles 119 to 125). The Attorney-General explained the constitutional provisions which necessitated this Reference under Article 186 referring to the Legislative Procedure contained in Articles 70 to 77 and Financial Procedure contained in Article 78 to 88 (the comparable provisions for provinces being Articles 115 to 117 and

Articles 118 to 125). The Attorney-General pointed out that the non-obstante clause contained in Article 86 coupled with the power conferred on the Federal Government to authorise expenditure from the Federal Consolidated Fund while the National Assembly stands dissolved cannot be availed of for a period exceeding four months in any financial year pending completion of the procedure prescribed in Artiucle 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 the expenditure. This period of four months during the financial year 1988-89 expires on 31.10.1988. A need has therefore arisen of seeking, if possible within the framework of the Constitution, a legal authortization for incurring the expenditure of the Constitution, a legal authorization for incurring the expenditure of the Constitution, a legal authorization for incurring the expenditure after 31.10.1988. The expenditure is unavoidable for loans have to be repaid, the affairs of the State have to be managed and looked after, the financial liabilities of the law and order to be maintained and the defence of the country effectively ensured. These factors bring in and establish a case of extreme State necessity. The Attorney-General suggested that within the framework of the Constitution recourse may be possible to Articles 254, 89, 79 and 234 for promulgating an Ordinance respectively bythe President and the Governor for authorising the expenditure after 31.10.1988. In the alternative it was suggested that as the Supreme Court has already mandated the election of the National Assembly on 16th November, 1988 and that of the Provincial Assemblies on 19th November, 1988, a consequential authorisation of expenditure may legally be declared as necessarily following that mandate for a reasonable period beyond the holding of the elections. As regards the exact post-election period required to be covered, the Attorney-General pointed out that when the Assemblies get elected their first duties will be to elect the Speaker, and the Deputy Speaker and then will the reserved ladies seat following by the appointment of Prime Minister and further sixty days of time for obtaining a vote of confidence. All this may take the time of four months or so.      [p.84]A

The President is the sole judge of the public importance of the question and the desirability of referring it to the Supreme Court. Only a question of law can be referred to the Supreme Court. Only a question of law can be referred to the Supreme Court under Article 186. There is no doubt that the question referred is one of law and accordingly it becomes the duty if Supreme court to consider it and report its opinion thereon. Furthermore, the answer to the question of law always depends on facts assumed in the Reference and the Reference has to be answered on the assumption of facts on which it is made without entering into a fact finding enquiry into their accuracy. [p.87]B

While answering the question the Supreme Court assumed that the National and Provincial Assemblies stood dissolved on the dates mentioned in the Reference.

A careful perusal of the provisions of Article 86 shows that these are applicable when the National Assembly stands dissolved, but at the same time visualises its re-constitution before the period of four months. It will be seen that the period of four months for which authorization is allowed to the Federal Government is “pending” completion of the procedure under Article 82 and authentication of the schedule of authorised expenditure under Article 83.  Obviously, neither the procedure under Article 82 nor the authentication under Article 83 can take place without the re-constitution of the National Assembly after its dissolution.

The Supreme Court made it clear that the present opinion has been rendered in view of the special facts and circumstances of the case where the election could not be held within ninety days on account of the lapse, inter alia, of the Parliament in not complying with the provisions of Article 222(2) read with Article 51(3), and this Court has also in its order dated 6.10.1988 held that in the exceptional situation, the elections scheduled on 16.11.1988 and 19.11.1988 are valid under the Constitution. This opinion, therefore, cannot serve as a precedent for the future or can be understood to be laying down the law that if the election are held after the stipulated period of ninety days, the Government concerned shall still have some period beyond four months prescribed under Article 88 to incur expenditure from the Consolidated Funds.

The answer to the question referred under Article 186 by the President of Pakistan, therefore, is that the Federal and Provincial Governments can authorise incurring of expenditure out of the Federal and Provincial Consolidated Funds upto one month after the declaration of results of the General Elections scheduled for 16.11.1988 and 19.11.1988. [p.91]G

The question referred under Article 186(1) by the President of Pakistan is answered under Article 186(2) in the terms that the Federal and Provincial Governments can authorize incurring of expenditure out of the Federal and Provincial Consolidated Funds

upto one month after the declaration of the results of the General Election of the National and Provincial Assemblies scheduled for 16th and 19th November, 1988 respectively. [p.108]Z

Per Shafiur Rehman, J. –

The answer to the question referred under Article 186 is that powers conferred by Article 89(2)(a) can be invoked by the President and power conferred by Article 128(2)(a) can be invoked by the Governor for meeting the situation as is likely to arise after 31.10.1988 in the matter of incurring expenditure  from the Consolidated Funds. The exercise of this power shall however, be subject to all the limitations and conditions

prescribed in the respective provisions of the Constitution. [pp. 101-102, 104, 106-107]RSTU & Y

Article 186 — Reference by the President — Only a question of law can be referred to Supreme Court — Answer to the question of law always depends on facts assumed in the Reference and reference has to be answered on the assumption of facts on which it is made without entering into a fact finding enquiry into their accuracy. [p.87]B

Per Muhammad Afzal Zullah, J. –

Article 186 — Reference by the President — Reference has to be answered in accordance with the opinion of the Court regarding the interpretation of law and the Constitution — Supreme Coaurt cannot decide the matter as lies between the parties, wherein exercise of other powers is available to the Court including discretionary and taking other consequential actions. [p.100]O

Article 73(2)(c) — Expression “the issue of money from that fund” has no other meaning except authorising of expenditure from consolidated fund — Word “issue” means to put into circulation, to send out officially and to deliver for use. [p.106]U

Articles 186 under which this Reference has been made reads as follows:

“186.  (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on anmy question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.

(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President”.

The President is the sole judge of the public importance of the question sand the desirability of referriong it to the Supreme Court. Only a question of law can be referred to this Court under Article 186.  There is no doubt that the question referred is one of law and accordingly it becomes the duty of this Court to consider it and report its opinion thereon. Furthermore, the answer to the question of law always depends on facts assumed in the Reference and the Reference has to be answered on the assumption of facts on which it is made without entering into a fact-finding enquiry into their accuracy. See Special Reference No. 1 of 1955 (PLD 1955 SC 435).  While answering the question we have therefore, assumed that the National and Provincial Assemblies stood dissolved on the dates mentioned in the Reference.

Per Shafiur Rehman, J. –

The answer to the question referred under Article 186 is that powers conferred by Articles 89(2)(a) can be invoked by the President and power conferred by Article 128(2)(a) can be invoked bys the Governor for meeting the situation as is likely to arise

after 31.10.1988 in the matter of incurring a expenditure from the Consolidated Funds. the exercise of this power shall however, be subject to all the limitations and conditions

prescribed in the respective provisions of the Constitution. [pp. 101-102, 104, 106-107] R,S.T,U. & Y.

Article 186 — Reference by the President — Only a question of law can be referred to Supreme Coaurt — Answer to the quewstion of law always depends on facts assumed in the Reference and Reference has to be answered on the assukmption of facts on which it is made without entering into a fact finding enquiry into their accuracy. [p. 87]B – PLD 1955 SC 435. Ref.

Article 89 — Power of President to promulgate Ordinance — Expression “when National Assembly is in session” — A session is the period of time between the meting of Asembly, whether after a prorogation or a dissolution, and its prorogation. [p.107]W

Article 186 under which this Reference has been made reads as follows:

“186. (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.

(2) the Supreme Court shall consider a question so referred and report its opinion on the question to the President.”

The answer to the question referred under Article 186 is that powers conferred by Article 89(2)(a) can be invoked by the President and powers conferred by Article 128(2)(a) can be invoked by the Governor for meeting the situation as is likely to arise after 30.10.1988 in the matter of incurring expenditure from the Consolidated Funds. the exercise of this power shall however, be subject to all the limitations and conditions prescribed in the respective provisions of the Constitution.

Article 73 is as hereunder :-

(1)  Notwithstanding anything contained in Article 70 a Monmey Bill shall orginate in the National Assembly and after it has been passed by the Assembly it shall, without being transmitted to the Senate, be presented to the President for assent.

(2)  For the spurposes of this Chapter, a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely :-

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the borrowing of money, or the giving of any guarantee by the Federal Government, or the amendment of the law relating to the financial obligations of that Government;

(c) the custody of the Federal Consolidasted Fund, the payment of moneys into, or the issue of moneys from, that Fund;

(d) the impositiion of a charge upon the Federal Consolidated Fund or the abolition or alteration of any such charge;

(e) the receipt of moneys on account of the Public Account of the Federatiion, the custody or issue of such moneys;

(f) the audit of the accounts of the Federal Government or a Provincial Government; and

(g) any matter incidental to any of the matters specified in the preceding paragraphs.

(3) A bill shall not be deemed to be a Money Bill by reasons only that it provides —

(a) for the imposition or alteration of any fine or other pecuniary penalty, or for th4e demand or payment of a licence fee or a fee or charge for any service rendered; or

(b) for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.

(4) If any question arises whether a Bill is Money Bill or not, the decision of the Speaker of the National Assembly thereon shall be final.

(5) Every Moiney Bill presented to the President for assent shall bear a certificate under the hand of the Speaker of the National Assembly that it is a Money Bill, and such certificate shall be conclusive for all purposes and shall not be called in question.

Clause (2)(c) of Article 73 reproduced above which has been underlined deserves particular attention, it brings in as a fit subject of Ordinance what is now before us.

The expression “the issue of money from that fund” has no other meaning except authorizing of expenditure from Consolidated Fund. “Issue” has been defined in Black’s Dictionary as “To put into circulation”. “To send out officially”, “to deliver for use”.

Where it was intended to inhibit the Ordinance making power the Constitution makes express provision for it. For example in the Indian Constitution after prescribing the Financial Procedure, as does our Constitution in Article 78 to Article 82, clause (3) of Article 114 of the Indian Constitution provides:

“Subject to the provisions of Article 115 and 118 no momney shall be withdrawn from the Consolidated Fund of India except under appropriation made by law passed in accordance with the provisions of this Article. (underlining ours)

Articles 115 and 116 of the Indian Constitution to which this clause is subordinate is not relevant in our context because they deal with supplementary, additional or excess grants and votes on account.

Another feature to be noted is that Article 128 (Ordinance making power of the Governor) does not contain as does Article 89 any reference jto corresponding provision 115(2)(c) but one ground viz of the subordination of Article 123(3) to other provisions of the Constitution remains. Besides, the omission is not directed towards obtainiong a different result but because there are not two houses in the Province, and the difference existing in Parliament over the Legislative treatment of Fisacal matters did not in terms exist in the Province.

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