P L D 1993 PESHAWAR 207
NAWABZADA MOHSIN ALI KHAN AND OTHERS
GOVERNMENT OF N.W.F.P. AND OTHERS
Per Abdul Karim Khan Kundi, C.J.
(a) Constitution of Pakistan (1973) Art. 112 & 105-
The power of Chief Minister to advise dissolution of the Provincial Assembly is not entirely unfettered because a Chief Minister against whom there exists notice of a resolution for a vote of no-confidence or against whom a vote of no-confidence has been passed cannot advise dissolution. These fetters are not trivial especially when we find that in the United Kingdom and Japan even that Prime Minister can advise dissolution against whom a vote of no-confidence has been passed. Be that as it may, the Legislature in its wisdom has not deemed it necessary to put more fetters on the power of the Chief Minister to advise dissolution, therefore, we cannot structure the discretion. The authority cited by Mr. K.M.A. Samdani is distinguishable as it relates t powers conferred by the subordinate Legislation and not by the Constitution. [p. 226] C
The contention in regard to the recording of reasons for the advice has
The role of the Governor in case of dissolution of the Provincial Assembly in his discretion hardly needs any emphasis but in case of dissolution on the advice of the Chief Minister his role is limited and benign. The expression “shall” used n clause (1) leaves no room for doubt that he is commanded by the Constitution to dissolve the Provincial Assembly forthwith if advised by the Chief Minister. Another factor, which curtails his role, is that the advice has the germs of an order as it entails dissolution after the expiry of forty-eight hours. The object of the time frame provided in clause (1) is to make the advice effective in the event f inaction on the part of the Governor and to wind up important pending matters like passage of Bills and not to enable the Governor to dissect the advice and thrust his will on the Chief Minister because in view of the time frame provided in clause (1) such activities would be an exercise in futility. Article 112 is an independent clause while Article 105 is a clause subject to the other provisions of the Constitution including Article 112(1), the overriding clause and, therefore, Article 105 providing for reconsideration of the advice by the Chief Minister does not control the operation of Article 112(1) of the Constitution. Even otherwise the desired role of the Governor seems meaningless because an advice returned for reconsideration can be resubmitted without much loss of time an under Article 105(1) the Governor is bound to act on it. The Constitution does not conceive a racing match between the notice-giver and the advising Chief Minister and if the notice is given in the Assembly as envisaged by the Constitution and not in a calandestine manner there will be no need for the Governor to hold an inquiry as he will be informed of the notice by the Provincial Secretariat or the Assembly Secretariat or he well come to know of it himself through the electronic and the press media. Under Article 130(5) of the Constitution Governor has, no doubt, the power to require the Chief Minister of obtained a vote of confidence from the Assembly but if under the given circumstances the Chief Minister is asked o obtained a vote of confidence a session of the Provincial Assembly shall have to be summoned which is indeed a time consuming exercise and it is matter of commons knowledge that such a session is ordinarily summoned when the Governor has made up his mind to sack the Chief Minister which is, however, not the relevant factor in the case. The Chief Minister cannot also be asked to submit the advice for consideration to the Cabinet as provided in Article 131© because it deals with day to day functions of the Chief Minister and the Ministers and proposals for legislation and has no connection whatsoever with the powers of the Chief Minister vis-à-vis the dissolution of the Provincial Assembly. Article 130(1) provides for a Cabinet of Ministers with a Chief Minister at its head, to aid and advise the Governor in the exercise of his functions and Article 105(1) provides for the performance of functions by the Governor on the advice of the Cabinet or the Chief Minister. Article 112(1) reserves the function of the dissolution of Assembly by the Governor only on the advice of the Chief Minister with no concern of the Cabinet. [p. 227 & 228] E
(b) Constitution of Pakistan (1973) Art. Arts. 112 & 136-
As mentioned earlier the words ‘notice of a resolution for a vote of no-confidence has been given’ appearing in the Explanation were substituted for the words ‘resolution for a vote of no-confidence has been moved’ by the Constitution (Eighth Amendment) Act, 1985. This Amendment is closely linked with the Amendment made in Article 136 of the Constitution by P.O. No. 14 of 1985, which deals with vote of no-confidence against the Chief Minister, and by which the process of vote of no-confidence is initiated. The expression ‘in the Assembly’, which has been used in many Articles in Part IV of the Constitution of which Article 112 forms a part, undoubtedly, means on the floor of the House but as there is no express or implied bar on giving the notice of a resolution for a vote of no-confidence during the period when the Assembly is not in session wide and extended meanings are to be given to this expression so as to include in it the Assembly Secretariat which is an adjunct of the Assembly. [p. 228] F
The Explanation is silent about the nature of the notice of a resolution for a vote of no-confidence, therefore, the notice may be oral or written but if it is oral it must be given on the floor of the House so that the Speaker s in a position to ascertain that it has been given by twenty percentum of the total membership of the Provincial Assembly and if it is written it must contain the names and signatures of twenty percentum of the total membership of the Provincial Assembly and if it is written it must contain the names and signatures of twenty percentum of the total membership of the Provincial Assembly as required under Article 136 of the Constitution and may be given on the floor of the House to the Speaker or in the Assembly Secretariat to the Secretary of the Provincial Assembly. [p. 229] G
The contention has no substance because as pointed out earlier if the notice within the meanings of the Explanation is in writing it must be given either on the floor of the House to the Speaker or n the Assembly Secretariat to the Secretary of the Provincial Assembly. The meanings of the Assembly Secretariat cannot be extended so as to include the residence of the Secretary and the Additional Secretary of the Provincial Assembly because in that case every employee of the Assembly Secretariat will be well within his right to claim that has his residence forms part of the Assembly Secretariat with the result that the elements opposed to the dissolution of the Assembly for one reason or the other will have an unlimited field to operate with a view to sabotaging dissolution. [p. 230] K
Coming to the alleged oral notice, the same does not seem proved as the allegation in respect thereof contained in paragraph NO. 3(b) of Writ Petition no. 395 of 1993 was denied by the Speaker in paragraph No. 3(b) of his written statement filed on 10-6-1993. Even otherwise this notice has no value because as mentioned earlier an oral notice of a resolution for a vote of no confidence must be given by twenty percentum of the total membership of the Provincial Assembly on the floor of the House.
The written notice set up by the petitioners is in fact non-existent as it was neither handed over to the Secretary or the Additional Secretary of the Provincial Assembly nor was left in the Assembly Secretariat. As a matter of fact the case of the petitioners is that in view of the admission of the Additional Secretary of the Provincial Assembly that petitioners Javed Akbar and Hidayatullah Khan had come to his residence and wanted him to receive notice of a resolution for a vote of no-confidence and due to his refusal to receive the same the notice should be deemed to have been given. It is true that the Additional Secretary of the Provincial Assembly in his written statement filed in Written Petition NO. 395 of 1993 on 10-6-1993 has admitted that petitioners Mr. Javed Akbar Khan and Mr. Hidayatullah Khan had come to his residence and wanted him to receive notice of a resolution for a vote of non-confidence against the Chief Minister and he had asked them to deliver it to the Secretary of the Provincial Assembly but the petitioners cannot draw any premium from it because as held earlier notice under the Explanation to clause (1) of Article 112 of the Constitution if written must be given on the floor of the House to the Speaker or to the Secretary of the Provincial Assembly in the Assembly Secretariat. [p. 232] M, N & O.
(c) Constitution of Pakistan (1973) Arts. 112 & 199–
The second objection that the advice in question was not justiciable under Article 105(2) of the Constitution is equally misconceived because we are required to examine the Constitutional validity of the advice which led to the dissolution of the Provincial Assembly and the ensuing order passed by the Governor and to determine if the same suffer from mala fides and not to dig out whether any and if so what advice was tendered to the Governor by the Chief Minister. The third objection, however, has substance because in his written statement filed in Writ Petition no. 395 of 1993 the Speaker was on the defensive and had made an observation is passing without spelling out the details that the dissolution was mala fide but in the writ petition filed by him he launched on outright offensive against the Chief Minster and the Governor by attributing the dissolution to command performance and collusion. [p. 238] S