Per Shafiur Rahman, J.(a) Constitution of Pakistan (1973), Articles 58(2)(b)
The second argument addressed was that the National Assembly is the only instrumentality of State directly elected by the people of Pakistan. Such an elected body should not be at the mercy of an indirectly elected constitutional functionary howsoever high. This or such an argument may be theoretically sound and plausible. However, the express words of the Constitution make provisions for it. Ours is not the only country where the power is so reserved. The legal and moral basis for reserving or reposing such a power and the occasional exercise of it have been illustratively described by A.V. Directly in his book “Introduction to the Study of the Law of the Constitution” (12 Edition) at page 433 as hereunder:-
“This looks at first sight like saying that in certain cases the prerogative can be so used as to set at naught the will of the nation. But in reality it is far otherwise. The discretionary power of the Crown occasionally may be, and according to the Constitutional precedents sometimes ought to be, used to strip an existing House of Commons of its authority. But the reason why the House can in accordance with the Constitution be deprived of power and of existence is that an occasion has arisen on which there is fair reason to suppose that the opinion of the House is not the opinion of the electors. A dissolution is its essence an appeal from the legal to the political sovereign. A dissolution is allowable, or necessary, whenever the wishes of the legislature are, or any fairly be presumed to be, different from the wishes of the nation.
This is the doctrine established by the celebrated contests of 1784 and of 1834. In each instance the King dismissed a Ministry which commanded the confidence of the House of Commons. In each case these was an appeal to the country by means of a dissolution. In 1784 the appeal resulted in a decisive verdict in favour of Pitt and his colleagues, who has been brought into office by the King against the will of the House of Commons. In 1834 the appeal led to a verdict equally decisive against Peel and Wellington, who also had been called to office by the Crown against the wishes of the House. The essential point to notice is that these contests each in effect admit the principle that it is the verdict of the political sovereign which ultimately determines the right or ( what in politics is much the same thing) the power of a Cabinet to retain office, namely, the nation.
Much discussion, oratorical and literary, has been expended on the question whether the dissolution of 1784 or the dissolution of 1834 was Constitutional (See Emden, The people and the Constitutional (2nd Edn., 1956) pp.194-196, 197-201-ED). To a certain extent the dispute is verbal and depends upon the meaning of the word “constitutional”. If we mean by it “legal”, no human being can dispute that George the Third and his son could without any breach of law dissolve Parliament. If we mean “usual”, no one can deny that each monarch took a very unusual step in dismissing a Ministry which commended a majority in the House of Commons. If by “constitutional ” we mean “in conformity with the fundamental principles of the Constitution,” we must without hesitation pronounce the conduct of George the Third constitutional, i.e. in conformity with the principles of the Constitution as they are now understood. He believed that the nation did not approve of the policy pursued by the House of Commons. He was right in this belief. No modern constitutionalist will dispute that the authority of the House of Commons is derived from its representing the will of the nation, and that the chief object of a dissolution is to ascertain that the will of Parliament coincides with the will of the nation. George the Third then made use of the prerogative of dissolution for the very purpose for which it exists. His conduct, therefore on the modern theory of the constitution, was, as far as the dissolution went, in the strictest sense constitutional. But it is doubtful whether in 1784 the King’s conduct was not in reality an innovation, though a salutary one, the then prevailing doctrine.”
A more recent version of the same in found in the book “The Prime Minister of India Powers and Functions” by Dr. (Mrs.) Sarla Malik at pages 48 to 50 in the following words:-
“The Prime Minister can also be dismissed if he stays in office by misusing his powers, and in very exceptional circumstances, if has stay in office is not considered in the national interest by the President. In such circumstances, the President can dismiss him even if he commands a majority in the Lok Sbaha. This course of action was adopted by Sir John Kerr, the Governor-General in Australia in November 1975. Even in Germany under the Weimar Republic President Hindenburg dismissed the Chancellor of the Reich, Brunning, in May, 1932, though he was in command of a majority in the Reich, and his term was still to run for two more years … … . For instance, after the dismissal of the Labour Ministry, headed by Gough Whitlam, and the appointment of the Liberal Ministry, headed by Malcolm Fraser by Sir John Kerr, the Governor-General of Australia in November 1975, fresh elections were held in December 1975, after dissolving the Senate and the House of Representatives. Fraser’s Liberal Party Coalition got a majority in both Houses of Parliament. This shows that the assessment of the political situation by the Governor-General was correct and his action was upheld by the electorate. On the other hand, if the assessment made by the Governor-General had proved wrong, and the electorate had again voted to power the Labour Party of Gough Whitlam, the position of the Governor-General would have been recally difficult. It will not be out of place to mention here that Dhrama Vira, who had dismissed United Front Ministry, headed by Ajoy Mukherjee, had to leave West Bengal when the United Front was voted back to power in 1968. Similarly, Marshal Maemohan in France had to resign in 1877 for dismissing the Ministry, which came back to power … … … . The power of dismissing the Prime Minister may be viewed in the perspective that if the Council of Ministers is bent upon subverting the Constitution, the President the certain reserve powers, and is obliged by his oath to exercise them.”
The specific power, the jurisdictional requirement all being provided in our Constitutional, it is not necessary to either go back deep into history or to infer a residual but necessary power of the President in the matter.[p.660]C
Such an argument may be attractive to the gallery but it cannot prevail because once the evil is identified, remedial and corrective measures within the constitutional framework must follow. Public functionaries, holding public power in trust, under oath to discharge the same impartially and to the best of their ability must react. They cannot and must not remain silent spectators.[p. 661]D
Coming now to the specifics, the jurisdictional requirement for an action under Article 58(2)(b) of the Constitution is that 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”.[p.662]E
Per Sajjad Ali Shah, J.
(b) Constitution of Pakistan(1973), Article 58(2)(b)
This much for the background of the constitutional power, its scope and meaning in the past and in the contemporary decisions outside Pakistan. In Haji Muhammad Saifullah Khan’s case (PLD 1989 SC 166) our Constitutional provision has received full attention and its meaning and scope authoritatively explained and determined. It is an extreme power to be exercised where there is an actual or imminent breakdown of the constitutional machinery, as distinguished from a failure to observe a particular provision of the Constitution. There may be occasion for the exercise of this power where there takes place extensive, continued and pervasive failure to observe not one but numerous provisions of the Constitution, creating the impression that the country is governed not so much by the Constitution but by methods extra-Constitutional.[p.664]F
(c) Constitution of Pakistan (1973), Article 58(2)
The word “Government” has not been defined in the Constitution. Black’s Law Dictionary defines it as “the whole class or body of office-holders or functionaries considered in the aggregate upon whom devolves, the executive, judicial, legislature and administrative business of the State.” While interpreting President’s Order I of 1970, the Lahore High Court in Master Khusrow Amir Khan Niazi v. Province of Punjab and 2 others (PLD 1975 Lahore 819) held as hereunder:-
“It may also be observed in this connection that under clause (b) of subsection (1) of section 20 of the President’s Order No.1 of 1970 the President can by order make suitable provisions for “the Government and administration of the Islamabad Capital Territory.” The President’s Order 12 of 1971 has, inter alia, been made in pursuance of the provisions of clause (b) of subsection (1) of section 20 of President’s Order I of 1970. The term “Government” used in the abovementioned provisions includes the exercise of legislative functions. The becomes all the more clear because the term “Government” has been employed in addition to and apart from the term “administration”, in the above provisions. As explained by the Supreme Court in Iftikharuddin v. Muhammad Sarfraz PLD 1961 SC 585, the word “Government” includes in its ordinary connotation, legislative, judicial and executive functions, and the ordinary connotation should adopted in the absence of any indication to the contrary. There is nothing in the President’s Order I of 1970 which indicates any contrary intention.”
There is no reason why the word “Government” used in Article 58(2) of the Constitution be given a restricted or a different meaning.
P R E A M B L E – Defection of Elected Members – Vices
The preamble to the Constitution prescribed that “the State shall exercise its powers and authority through the chosen representative of the people”. Defection of elected members has many vices. In the first place if the member has been elected in the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed on him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a re-election. This will make his honorable politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till now elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State. The normative moorings of the Constitution prescribe that “sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust” and the State is
enjoined to “exercise its powers and authority through the chosen representatives of the people”. An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. He cannot on the mandated Constitutional prescription participate in the exercise of State power and authority. Even by purely secular standards carrying on the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but “mockery of the democratic Constitutional process”. The other enumerated evils contained in first ground precede, accompany or follow the defection. That there had been taking defections has not been seriously disputed, nor the fact that the defectors were quite often rewarded with posts and prizes.[p.666]K
(d) Constitution of Pakistan (1973), Article 58(2)(b)
As regards the second ground, we find sufficient correspondence on record to indicate that persistent requests were made by the provinces for making functional the Constitutional institutions like Council of Common Interests, National Finance Commission with a view to sort out disputes over claims and policy matters concerning the Federation and the Federating Units as such. In spite of the intercession of the President, no heed was paid, constitutional obligations were not discharged thereby jeopardizing the very existence and sustenance of the Federation.[p.666]L
(e) Constitution of Pakistan (1973), Article 58(2)(b)
It is true that some of the grounds like (c), e (ii) and e (iii) may not have been independently sufficient to warrant such an action. They can, however, be invoked, referred to and made use of along with grounds more relevant like (a) and (b) which by themselves are sufficient to justify the action taken.[p.666]M
Per Rustam S. Sidhwa, J.
I order to understand the controversy, it is necessary to understand the nature of our Constitution. The Pakistan Constitution framed in 1973, as amended up to the date of the dissolution of the Assemblies, is basically Federal in character, partaking of the British Parliamentary system, with the executive having the primary responsibility for the formation of the Government policy and it impemlentation through the process of law, subject to its retaining the confidence of the legislature. The executive has to act subject to the control of the legislature. Under Article 41, the President is the Head of the State and represents the unity of the Republic. Under Article 90, the executive authority of the Federation is vested in the President and is exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution, without prejudice to the right to the Majlis-e-Shoora (Parliament) from conferring by law functions on authorities other than the President. Under Article 97, the executive authority of the Federation extends to all matters with respect to which the Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. Under Article 98, the Majlis-e-Shoora (Parliament), on the recommendation of the Federal Government, can by law confer functions upon officers or authorities subordinate to the Federal Government. Under Article 91, there is a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. Under Article 48(1), the President in the exercise of his functions, has to act in accordance with the advice of the Cabinet or the Prime Minister; without prejudice to his right under Article 48(2), to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so. The President is thus a fairly strong constitutional head of the executive with the real power vesting in the Cabinet and he Prime Minister. Similar position obtains in the Provinces, with the Governor as the head of the executive. Under Article 130, there is a Cabinet of Ministers in each of the Provinces with the Chief Minister as its head, to aid and advise the Governor in the exercise of his functions. The Cabinet is therefore the guardian knot which binds the legislature to the executive both in the Federation and in the provinces. The Cabinet enjoying majority support in the legislature, controls both the legislative and executive functions. Where they are agreed on fundamentals and represent the collective will of the nation, they control policy in all its forms. All these provisions, bring out clearly the Federal character of the Constitution, based on the Parliamentary system.
Even where the National or a Provincial Assembly is dissolved, the Constitution seeks to maintain the continuity of the system. Where the President dissolves the National Assembly, he is mandatorily bound under Article 48(5) to fix a date, not later than 90 days from the date of such dissolution, for the holding of the general election to the said Assembly and also to appoint a Care-taker Cabinet. The word “and” between paras (a) and (b) of clause (5) of Article 48 shows that the fixing of the date of the next general election and the appointment of the Care-taker Cabinet are co-extensive with the dissolution of the National Assembly. Where the Governor dissolves the Provincial Assembly, he is mandatorily bound under Article 105(3) to appoint, in his discretion, but with the previous approval of the President, a Care-taker Cabinet. Under Article 224(2), when the National or a Provincial Assembly is mandatorily to be held within period of ninety days after the dissolution and the results of the election have to be declared not later than fourteen days after the conclusion of the polls. Articler 48(5) (b) and 224(2) both read together, clearly show that the general elections must be held within ninety days of the dissolution of the National or Provincial Assembly and the date which is to be fixed must be such which brings about the election within this stated period. In Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166), where the dated fixed for the election exceeded by over fifty days the period prescribed, this Court by majority view treated the delay as excusable, though Shafiur Rahman, J, treated the same as inexcusable and unwarranted. Under Article 48(5)(b), where the President dissolves the National Assembly, he has mandatorily to appoint, in his discretion, a Care-taker Cabinet. Under Article 105(3), where the Governor dissolves a Provincial Assembly, he has mandatorily to appoint, in his discretion, but with the previous approval of the President, a Care-taker Cabinet. Under Article 91(8), where a National Assembly is dissolved, the Chief Minister or any other Minister can be allowed to continue in his office during the period of dissolution, or any other person can be appointed as Chief Minister or other Minister during such period. Articles 91(8) and 130(8) thus enable the executive powers to be exercised by the President and the Governor with the aid and advice of interim Care-taker Cabinets, for without such Cabinets their actions would be unconstitutional. The appointment of the Prime Minister from amongst Minister at the Federal level and the Chief Minister from amongst Ministers at the Provincial level is mandatory, for a Care-taker Cabinet can only be presided over by them and a Cabinet is not legally complete without them. The Care-taker Cabinet cannot be presided over by the President or the Governor. The Constitutional oaths which the Ministers make before assuming office also contain a provision by which they are bound not to reveal internal secrets, unless specially permitted by the Prime Minister or the Chief Minister. The object of the Care-taker Cabinet is to fill a temporary void, so that it may conduct day to day administration, without getting involved in matters of substantive importance or policy or subjects having far-reaching effects, other than during an emergency or some urgency, till the new Government is installed. Above all, it is not supposed to influence the elections or do or cause to be done anything whereby which Government machinery or funds are channeled in favour of any political party. Perhaps its most important duty is to ensure free, fair and impartial elections, the said function being inherent in the very purpose for which it is constituted. All these provisions cumulatively show that no sooner the Federal or the Provincial Assembly is dissolved, that Care-taker Cabinets have to be immediately installed, in keeping with the Parliamentary traditions of a Cabinet system of Government, with the Prime Minister or Chief Minister at its head. This is nothing more than an extension of the principle of continued Parliamentary responsibility, which is engrained in the Parliamentary system. In Federation of Pakistan v. Muhammad Saifullah Khan (supra), where a Care-taker Cabinet at the Federal level was installed, without a Prime Minister, this Court took serious notice of the omission and held that the Constitutional provisions clearly showed that the office of the Prime Minister was necessary at all times for running the affairs of the country and that he should have been appointed to head the Care-taker Cabinet. Shafiur Rahman J, treated the omission as altering the very character of the Constitution from a Parliamentary democracy to a residential system of Government, which omission he felt the Courts should neither countenance nor condone.
Where the Care-taker Cabinet is not to be composed totally from the old Ministers but a new or mixed set has to be appointed, from out of the elected members, it is of the utmost importance that they are totally neutral persons possessing the highest integrity so that the elections can be held in an atmosphere of impartiality and the same are not influenced in any way in favour of any political party. The appointment of members of the Care-taker Cabinet is strictly in the discretion of the President or the Governor under Article 48(5) or Article 195(3), which is not within scope of judicial review, but the appointment of members known for their open hostility to the last party in power, or those likely to subvert the election, would border on breach of Immateriality and severely injure the democratic process. Impeccable impartiality demands that the President and Governor remain free from all political colour and affiliation and that the elections held are free and fair as can even throw up the dismissed party in power. Both the President and Governor are heavily burdened with onerous duties and their chambers are no bed of roses. They perform their duties not for the glory of the office, but for the honour and dignity of the State.[pp.680,681,682,683]T
The basic character of the Constitution is now a mix. It is not Presidential; it was never meant to be. It is not totally Parliamentary; as it was intended.
This amalgam of powers can be viewed from two angles. One view—-The President, by virtue of a host of Articles, can interfere by advice and recommend change and correction. The President has effective power to make himself felt and secure attention and compliance of his views. His invisible presence is no less effective than his presence. The power is thus divided between the President and the Prime Minister. It is the case of two competing holders of power at the apex. The President thus has effective power greater than the freedom to act on the three rights of the Crown which King George V once expressed he had and of which Bagehot spoke, namely; “The right to be consulted, the right to encourage and the right to warn”. The President’s intercession can thus be treated as impeding the functioning of anything in the nature of a purely parliamentary Cabinet form of Government. The other view—-The President can be treated as the repository of a complementary power, so very much needed to neutralize discord, preserve unity and restrain the political will from breaking its conventional frontiers. An experienced and wise President, having served as a member of Parliament for a number of years, could provide the much needed guidance and direction as a benign moderator and democratic ombudsman. Where a breakdown of Parliamentary discipline, ethics and morality have set in, such a President could perhaps be the last bulwark between chaos and utter disaster. Like two jets in a carburetor, the President and the Prime Minister have to synchronise their working, to provide smooth functioning of the democratic process. Where both live by the book and rule of law, they cannot provide any scope for discord, and there should be none, for no two honest can differ over the which is inherently true and correct. It is on when the Constitution or the rule of law is flouted, that disagreement can set in and where the system totally fails, disagreements and disharmony become symbols of political hatred and discord. An enlightened Parliament alone will have to answer the question whether the present system is inherently defective or intrinscially sound and can be allowed to work.
(f) Constitution of Pakistan (1973) — Para III, Chapter I — Position of the President of Pakistan stated.
A few words may be stated about the position of the President. The President, as the Head of the State, represents the unity of the Republic. He is thus placed above the party. He is the being moderator and the symbol of the impartial dignity of the State. He is entitled to certain communications and information, which is the duty of the Prime Minister to furnish, with power to submit for the consideration of the Cabinet any matter on which a decision may have been taken but which has not been considered by the Cabinet. He can call upon the Cabinet to reconsider any advice tendered or consider such advice.[pp.683,685]U
One may now turn to the office of the President in the context of the party that puts him into power. A President may be appointed by the major political party in power holding majority votes in the two Houses and the Provincial Assemblies. In such a case it is very likely that he would be a member of the major political party in power and a person thus sharing their political views. He may also be a person not belonging to the major political party, but put as a joint candidate by a number of political parties, in which case he would be treated as in a position of trust, impliedly obligated to favorably share their political consensus. In either case, being a symbol of impartiality and unity, he would have to transcend all political, private or personal interests and conduct himself with dignity and grace. In matters where he had to exercise his functions with the aid and advice of the Cabinet, it is expected he would act on the advice tendered. Where he feels inclined to slightly deviate, but not differ, then one would assume he has worked out, with the tacit consent of the Cabinet or the Prime Minister, a proposal nearest and most appropriate as a alternative to that presented, which can then be accepted by him. Parliamentary practice and convention do not permit the President to unnecessarily, unreasonably or rashly differ, so as to create cleavage or polarity, which may affect the smooth functioning of the Government. Where, however, the President feels strongly compelled to differ, only the highest considerations of fairplay, equity or justice would justify him to take such a course, in which case, I would imagine, the Prime Minister or the Cabinet would bow down, more out of respect for the higher considerations involved, rather than the enforcement of their will. In the category of cases where the President is obliged to act in his discretion according to the Constitution, he would be within his legal rights, on opinion properly and objectively formed in that respect, to exercise his functions without the aid or advice of the Cabinet or the Prime Minister, though it is inconceivable that he would not have examined the aid proffered or advice tendered by the Cabinet, if any. However, within the confines of confidentiality, the unseemly would have given place to order, dispute to agreement and disharmony to consensus, so that outwardly all actions conform to the requirements of the Constitution or appear in conformity with Parliamentary practice and procedure.[p. 685]W
(g) Constitution of Pakistan(1973), Article 112(2)(b) & 112(2)(b)
I may now turn to the matter in hand. The history of the provisions relating to the failure of the Constitutional machinery as contained in Article 58(2)(b) and 112(2)(b) of the Pakistan Constitution, 1973 can be traced to the Government of India Act, 1935. Section 45 of the said Act provided for failure of the Constitutional machinery in the Federation and section 93 provided for such failure in the Provinces. The said sections inter alia provided that if at any time the Governor-General in the case of the Federation or Governor in the case of Province was satisfied that a situation had arisen in which the Government of the Federation or a Province could not be carried on in accordance with the provisions of the Act, the Governor-General or the Governor concerned could, by proclamation, declare that his functions would to such extent as were specified in the proclamation, be exercised by him in his discretion, or assume to himself all or any of the powers vested in our exercisable by any Federal or Provincial body concerned or authority.[p.685,686]X
(h)Constitution of Pakistan (1973), Article 58(2)(b)
To hold that because a particular provision of the Constitution was not complied with, the National Assembly could be dissolved under Article 58(2)(b) of the Constitution, would amount to an abuse of power — Unless such a violation independently was so grave that a Court could come to no other conclusion but that it alone directly led to the breakdown of the functional working of the Government, it would not constitute a valid ground.[p.688]Y
(i) Constitution of Pakistan (1973), Article 58(2)(b)
The main question that arises is when it can be said that a situation has arisen in which the Government of the Federation or a Province cannot be carried on in accordance with the provisions of the Constitution. In Muhammad Sharif v. Federation of Pakistan (PLD 1988 Lah 725 at 777), I had the opportunity of examine this matter in respect of the dissolution of the National Assembly, where I stated inter alia:-
“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 it 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 Assembly. Thus, were the National Assembly is beset with internal distensions and problems and the party allegedly in power does not have a clear majority, or having tenuous 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 alternative Government can be formed.”
In that case I was dealing with the case of a majority party having undisputed majority seats and voting strength, which was firmly in the saddle, running its affairs smoothly and carrying on the functions of the Government with confidence. The situations visualized above relating to failure of Constitutional machinery were therefore given in the context of that case. However, when the said case traveled to the Supreme Court, this Court, by majority view in the Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 S.C. 166), held that unless it could be shown that the machinery of to Government had broken down completely, its authority eroded and the Government could not be carried on in accordance with the provisions of the Constitution, dissolution could not be ordered. At another place it held that unless the machinery of the Government of the Federation had come to a standstill or such a breakdown had occurred therein, which prevented the orderly functioning of the Constitution, dissolution could not be ordered. With respect, I would submit that the test laid down is too strict and rigid. It forgets that provision is also preventive. One does not have to wait till the whole machinery of the Government collapses or comes to a standstill or so serious a breakdown occurs which prevents the orderly functioning of the Government, before ordering a dissolution. What is required is that the breakdown is imminent, as partial dislocation has begun, or the breakdown has actually taken place and as a last resort interference is required to ultimately restore representative Government. Each case should therefore be left to be dealt with on its own merit. There could be many situations which could lead to or where there is an actual failure of Constitutional machinery, such as where the party in power having tenuous support from its members, is not able to carry on the functions of the Government effectively, or a deliberate deadlock created by a party or a group of parties or deadlock arising from an indecisive electoral verdict has constantly impaired or made the smooth running of the Government practically impossible, or where no party in the legislature is in a position to form a Government, or the party in power is guilty of or attempting internal subversion, or where a Government is being continuously conducted in utter disregard of the Constitution, or there is a mass uprising or civil disturbance or complete breakdown of law and order due to public opinion being against the party in power at the Federal or Provincial level. Apart from assuming such situations can arisen, it would not be proper to lay down any parameters or tests to determine under what circumstances this Court would accept a given case as one falling in the category of breakdown of Constitutional machinery, other than deal with each case on its own merits as and when it comes up on the basis of material placed before the Court to show what facts were before the President or the Governor when the formed the opinion and whether the same had a proper nexus with the requirements of the Constitutional provisions.[pp.689,690]Z
Whilst stating with some diffidence the types of situations where the power can be exercised, it must be stated that this power is meant to be used by the President impartially and objectively and only as a last resort to restore some balance and order in the Government, within the compass of established Parliamentary practice, and not in a way as may give the impression that it is to displace a political party in power or to rob the Federation or the Provinces of their autonomy to rule within the respective spheres allowed to them by the Constitution. The exercise of various powers under the Constitution. The exercise of various powers under the Constitution does not guarantee that they will be exercised correctly, or that the elected representatives at the Federal or the Provincial level will perform their functions free from all human or legal errors and defects. All Government actions are not free from catastrophic errors of judgment or dismal failures of action. The functional ability of a ruling party to govern does not merely fail if some provision of the Constitution is violated or not performed or ill-performed. With political strategy and choices, in house divided between many political parties, being mauled or mutilated by conflicting interests, it may not be possible to take even simple decisions.
In the Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 this Court happened to consider the following grounds given by the President in his order justifying the dissolution of the National Assembly, namely;
(1) That the objects and purposes for which the National Assembly had been elected had not been fulfilled;
(2) That law and order in the country had broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss to property;
(3) That the life, property, honour and security of the citizens of Pakistan had been rendered totally unsafe; and
(4) That the integrity and ideology of Pakistan had been seriously endangered;
All of which it found as having no nexus with the breakdown of the Constitutional machinery or as justifying the dissolution of the National Assembly.
The total material presented to the Court showing the difficulty of the party in power having tenuous supports from its members, in not being able to carry on the functions of the Government with confidence and responsibility, the deliberate deadlock created by a party or group of parties or deadlock arising from an indecisive electoral verdict or some other situation constantly impairing or making the smooth running of the Government practically impossible, or no party in the legislature being in a position to form the Government, internal subversion attributable to the party in power, the continuous running of the Government in utter disregard of the Constitution, the total rejection by the people of the party in power exemplified by continuous mass processions, strikes and unrest on a national or provincial scale, are basically situations which have a nexus with the failure of the Constitutional machinery. Other stray, or a number of, violations of the Constitution unless by themselves so grave that a Court could come to no other conclusion but that they alone directly led to the break down of the functional working of the Government, would not constitute valid grounds. However, where one of the basic situations constituting breakdown of Constitution, where they have contributed to or been the cause of the breakdown, could be treated as valid supportive factors to the decision. Non-compliance of general law, failure to hold or call meetings under the provisions of the general law, misuse of the authority or resource of the Federation or of the Provinces or of statutory or autonomous bodies, unauthorized or irregular interference in Service matters and disruption in their regular and orderly working, some failure to maintain law and order; or the resultant effects arising form such situations such as the climate of uncertainty if any created thereby, the sense of insecurity created at different levels of administration, the rejection by the people of some actions of the party in power, creation of some threats to law and order, the weakening of the judicial process, would not normally provide grounds for action under Articles 58(2)(b) or 112(2)(b) of the Constitution, though they may with other factors, provide to the Court the total picture showing some of the other matters that attended the breakdown, or to show the resultant effects arising therefrom. This Court cannot sit in appeal over a dissolution order or substitute its findings for the opinion of the President, but a dividing the would have to be kept in mind between certain basic situations which can be treated as leading to the breakdown of the Constitutional machinery and as having nexus with the provisions of the two Articles of the Constitution that provide for dissolution, strong Constitutional violations which the Courts may hold as directly leading to the breakdown of the functional working of the Government and other peripheral Constitutional violations which contribute to or may be the cause of the breakdown and can be used as supportive factors where basic situations exist. This is apart from the question of quantum or sufficiency of the material over which this Court has no concern.[p.691,692]AA
Per Sajjad Ali Shah, J.
(j) Constitution of Pakistan(1973), Article 58(2)(b)
There is no dispute or doubt about the fact that Constitution does empower the President to dissolve the Assembly but before doing so he has to form the opinion, objectively that a situation has arisen of the kind envisaged in Article 58(2)(b), necessitating and justifying taking of grave step of dissolving of National Assembly. On the same point, while analyzing language of Article 58(2) (b) of the Constitution, where mention is made of “a language of Article 58(2) (b) of the Constitution, where mention is made of “a situation has arisen.” Shafiur Rahman, J. writing his separate note a page 212 of the report, has made a very pertinent and enlightening observation which is reproduced as under :-
“The expression “cannot be carried on” sandwiched as it is between “Federal Government” and “in accordance with he provisions of the Constitution”, acquires a very potent, a very positive and a very concrete content. Nothing has been left to surmises, likes or dislikes, opinion or view. It does not concern itself with the pace of the progress, the shade of the quality or the degree of the performance or the quantum of the achievement. It concerns itself with the breakdown of the Constitutional mechanism, a statement, a deadlock in ensuring the observance of the provisions of the Constitution.”[p.709]FF
In the case of Federation of Pakistan v. Saifullah Khan referred in the above paragraphs of the judgment, Supreme Court had gone deep into the question of debates in the National Assembly and speeches made by the Prime Minister and the Law Minister in order to ascertain the intention of the legislators on the amendment made in Article 58(2) (b) of the Constitution, to come to the conclusion, as it did, to the effect that discretion conferred by Article 58(2) (b) of the Constitution, on the President cannot, therefore, be regarded to be an absolute one but is to be deemed to be qualified one, in the sense that it is circumscribed by the object of law that confers it. If the action is violative of the Constitution then superior Courts have inherent duty to ascertain and enforce the provisions of the Constitution.(See also Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 at page 504.[p.712]GG